Common use of Sustainability Adjustments Clause in Contracts

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 5 contracts

Samples: Revolving Credit Agreement (Dominion Energy, Inc), Revolving Credit Agreement (Dominion Energy, Inc), Revolving Credit Agreement (Dominion Energy South Carolina, Inc.)

AutoNDA by SimpleDocs

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to Following the date that is 120 days following on which the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers Borrower provides a Pricing Certificate in respect of a calendar yearany Reference Year, (i) the per annum rates set forth under the captions “Term Benchmark Spread” (including with respect to the Letter of Credit fees payable pursuant to Section 2.12(b)(i)) and “ABR Spread” in the definition of Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for per annum rates set forth under the caption “Facility Fee for Commitments under Rate” in the DEI Sublimit definition of Applicable Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Facility Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.08(f) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.08(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the per annum rates set forth under the captions “Term Benchmark Spread” (including with respect to the Letter of Credit fees payable pursuant to Section 2.12(b)(i)) and “ABR Spread” in the definition of Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.050.040% and that the Applicable Percentage for per annum rates set forth under the caption “Facility Fee for Commitments under Rate” in the DEI Sublimit definition of Applicable Rate will never be reduced or increased by more than 0.010.010%, pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment DateReference Year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year Rate shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next adjustment is due to take place. Notwithstanding anything to the contrary in this Agreement, the Sustainability Pricing Rate Adjustment Dateand the Sustainability Fee Adjustment shall be 0.000% at all times from and after June 30, 2027. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower with regard to a particular Reference Year within the period set forth in this Section 1.71.08(f), the Sustainability Margin Rate Adjustment will be positive 0.050.040% and the Sustainability Facility Fee Adjustment will be positive 0.010.010% commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 1.08(f) and continuing until the day immediately prior Borrower delivers Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable Reference Year. (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders Administrative Agent shall mutually agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 the immediately preceding paragraph with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (i) a written demand is made for such payment by the Administrative Agent in accordance with such paragraphparagraph or (ii) 10 Business Days after the Borrower has received written notice of, or has agreed in writing that there was, a Pricing Certificate Inaccuracy (such date, the “Certificate Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Sustainability Structuring Agent nor the Co-Sustainability Structuring Administrative Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Rate Adjustment or Sustainability Facility Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent Lenders may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 180 days following the end of each calendar fiscal year of the Borrower (commencing with the calendar fiscal year ending December 31, 2021), the Borrower shall deliver to the Administrative Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Required Lenders: a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120180-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c1.08(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 4 contracts

Samples: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations Each of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined pursuant to Section 1.7(ceffective on the Sustainability Adjustment Date and (ii) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Margin and the Facility Fee Rate resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one the Sustainability Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered only once (as to any given Key Performance Indicator) in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred Margin will never be reduced by DEI more than [Redacted] or increased by more than [Redacted] and the Facility Fee Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%[Redacted], in each case pursuant to the Sustainability Margin Adjustment and or the Sustainability Facility Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year (the “Maximum Adjustment”). For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin due to a Sustainability Margin Adjustment or such any adjustment to the Facility Fee by reason of meeting one or several KPI Metrics Rate due to a Sustainability Facility Fee Adjustment in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood If the Company fails to provide the Lead Sustainability Structuring Agent and agreed that if no such the Administrative Agent with the Sustainability Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day or one or more of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported for any calendar year within the timeframe indicated in a Pricing Certificate (any such material inaccuracySection 6.2, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description Applicable Margin shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred increased by DEI [Redacted] and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers Rate shall be obligated to pay to the Administrative Agent increased by [Redacted] for the account of the each applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order Key Performance Indicator for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, which a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have KPI Metric has not been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable)submitted, commencing on the Sustainability Adjustment Date and continuing until five Business Day Days following receipt by the Administrative Agent of date on which the Company submits another Sustainability Pricing Certificate for such noticeKey Performance Indicator (or if no such Sustainability Pricing Certificate is provided, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustmentsubsequent calendar year); provided, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It that it is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; providedthe Applicable Margin and the Facility Fee Rate, thatas applicable, will never be increased by more than the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demandMaximum Adjustment. (fd) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Agents shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Adjustment or Sustainability Fee Applicable Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any KPI Metrics Report or any Sustainability Pricing Certificate (and the Administrative Lead Sustainability Structuring Agent and the Co-Sustainability Structuring Administrative Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (he) In the event Borrowers or of a Regulatory Change in relation to any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWKey Performance Indicator, the Renewable Energy Generation Capacity Percentage Target Company and the Renewable Energy Generation Capacity Percentage Threshold Lead Sustainability Structuring Agent shall be adjusted negotiate in good faith, by no later than 60 days following the effective date of such Regulatory Change any necessary amendment, modification or other supplement to account for Schedule 6.2 (Sustainability Performance Thresholds) (and /or any component definitions thereof) solely to reasonably accommodate the effect of such acquisition Regulatory Change on the Sustainability Performance Thresholds. Such amendment, modification or divestiture such that other supplement, shall require the Renewable Energy Generation Capacity Percentage Target consent and approval of the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner Company, the Lead Sustainability Structuring Agent and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if will take effect so long as Lenders constituting Required Lenders have do not objected object to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold changes within 5 five Business Days after receiving written notice of such deliveryproposed amendment, then Exhibit 1.7-1 modification or other supplement. If the Company, the Lead Sustainability Structuring Agent and the Administrative Agent do not agree to any such amendment, modification or supplement following the 60 day period, then, upon the written agreement among the Company, the Lead Sustainability Structuring Agent and the Administrative Agent, which will take effect so long as Lenders constituting Required Lenders do not object to such agreement within five Business Days after the Lenders’ receipt of written notice of such proposed agreement, the Sustainability Applicable Rate Adjustment shall cease to apply for the relevant Key Performance Indicator and, notwithstanding anything to the contrary herein, for all purposes hereunder, the Sustainability Applicable Rate Adjustment for such Key Performance Indicator shall be deemed amended to reflect be zero. In the case such Key Performance Indicator no longer applies, (i) the Company will then cease to refer to the applicable Key Performance Indicator in the Sustainability Pricing Certificate, (ii) the Maximum Adjustment shall be automatically updated to exclude any adjustments for such Key Performance Indicator and (iii) the Bonus Sustainability Margin Adjustment shall be automatically adjusted Renewable Energy Generation Capacity Percentage Target to exclude any performance requirement with respect to such Key Performance Indicator; provided that if no Key Performance Indicator applies, notwithstanding anything to the contrary herein and Renewable Energy Generation Capacity Percentage Thresholdfor all purposes hereunder the Bonus Sustainability Margin Adjustment shall be deemed to be zero.

Appears in 4 contracts

Samples: Revolving Credit Agreement (Ford Motor Co), 364 Day Revolving Credit Agreement (Ford Motor Co), 364 Day Revolving Credit Agreement (Ford Motor Co)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.06(f) based upon the KPI Metrics Carbon Intensity and OSHA Incident Amount (Three-Year Average) for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Rate resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.06(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate (i) with respect to Eurodollar Rate Advances and Base Rate Advances will never be reduced or increased by more than 0.05% and that (ii) with respect to the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, in each case, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Rate by reason of meeting one or several reference to the KPI Metrics Metric Targets in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the Carbon Intensity or the OSHA Incident Amount (Three-Year Average) for the applicable Reference Year, within the period set forth in this Section 1.71.06(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Rate commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.06(f). (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment Carbon Intensity or the KPI Metrics OSHA Incident Amount (Three-Year Average) as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment the Carbon Intensity or the KPI Metrics OSHA Incident Amount (Three-Year Average) would have resulted in no adjustment or an increase in to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.06(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by Administrative the Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the default rate provided in pursuant to Section 3.1(b2.07(b) prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the any Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), the Borrower may deliver a Pricing Certificate to the Agent (and the Agent shall promptly provide a copy to each Lender) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c1.06(c). (h) ). In the event Borrowers or any of their Subsidiaries acquire or divest the Borrower’s fiscal year is changed to a business, facility or Subsidiary with Capacity in excess of 100MWnon-calendar year fiscal year, the Renewable Energy Generation Capacity Percentage Target and Borrower will be permitted to adjust the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that timing of delivery of the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition Pricing Certificate at its election in a manner and methodology that are intended to maintain consistency with the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdforegoing.

Appears in 3 contracts

Samples: Credit Agreement (Arizona Public Service Co), Five Year Credit Agreement (Arizona Public Service Co), Credit Agreement (Arizona Public Service Co)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Parent provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar fiscal year (commencing with the date the Administrative Agent’s receipt thereoffiscal year ending December 31, each a “Pricing Certificate Date”2023), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Interest Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 2.21 (but in no event shall any adjustment result in the Applicable Interest Rate Percentage being less than 0.00%) and (ii) the Applicable Commitment Fee Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability times described in this Section 2.21 (but in no event shall any adjustment result in the Applicable Commitment Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cPercentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.21(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each , and (B) each change in the Applicable Percentages on any Interest Rate Percentage and the Applicable Commitment Fee Percentage resulting from a Pricing Certificate, and the Sustainability Pricing Rate Adjustment Date and the Sustainability Fee Adjustment related thereto, shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.21(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). Notwithstanding the foregoing, to the extent an External Impacting Event occurs after the First Amendment Effective Date, there shall be no subsequent adjustment to the Applicable Interest Rate Percentage or the Applicable Commitment Fee Percentage resulting from the Resource Solutions Amount KPI Metric until the Resource Solutions Amount, Resource Solutions Threshold, Resource Solutions Target and/or the Sustainability Table with respect to the Resource Solutions Amount (or relevant provisions with respect thereto) then in effect are adjusted in accordance with Section 2.21(g) or (j) below. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearfiscal year of the Parent. It is further understood and agreed that that, unless otherwise agreed pursuant to Section 2.21(g) or (j) below, any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Interest Rate Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee AdjustmentPercentage, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment with respect to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several more KPI Metrics in any calendar fiscal year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Each applicable Sustainability Rate Adjustment or Sustainability Fee Adjustment shall only apply until the conclusion of such Applicable Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Parent within the period set forth in this Section 1.72.21(i), the Sustainability Margin Rate Adjustment will be positive 0.050.040% and the Sustainability Fee Adjustment will be positive 0.010.010% (such positive rates, collectively, the “Sustainability Threshold Adjustment”) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.21(i) and continuing until the day immediately prior Parent delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Parent or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each other Lender and the BorrowersParent), or (B) the Borrowers Parent and the Required Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)of the United States, automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Parent has received written notice ofdemand from the Administrative Agent, or have within ten (10) Business Days after the Parent has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Parent becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Parent of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics, as applicable), commencing on the fifth (5th) Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed not to be materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 2.21(d), if such information or calculation was made by the Parent in good faith based on information reasonably available to the Parent at the time such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, Default so long as the Borrowers comply Parent complies with the terms of Section 2.21(d) and this Section 1.7 2.21(e) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)of the United States, (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph subsection (d) shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d), (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-any Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Parent of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Certificate. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). Each party hereto hereby further agrees that neither the Administrative Agent nor the Sustainability Coordinators make any assurances as to (i) whether this Agreement meets any Borrower or Lender criteria or expectations with regard to environmental impact and sustainability performance, or (ii) whether the characteristics of the relevant sustainability performance targets and/or key performance indicators included in the Agreement, including any environmental and sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-linked credit facilities. (g) As soon To the extent any Resource Solutions Impacting Transaction, any External Impacting Event or any TRIR Impacting Transaction occurs after the First Amendment Effective Date, then (i) the Resource Solutions Amount, Resource Solutions Threshold, Resource Solutions Target, Total Recordable Incident Rate, TRIR Threshold, TRIR Target A, TRIR Target B and/or Sustainability Table (including relevant provisions with respect thereto), as available applicable, may be adjusted in a manner reasonably acceptable to the Parent and the Sustainability Coordinators giving effect to such Resource Solutions Impacting Transaction, External Impacting Event and/or TRIR Impacting Transaction, as applicable (any such adjustments, “Impacting Event Adjustments”), and the Sustainability Coordinators, the Parent and the Administrative Agent may amend this Agreement to incorporate such Impacting Event Adjustments which 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 (who shall promptly notify the Parent) written notice that such Required Lenders object to such amendment (and, in the event Required Lenders deliver a written notice objecting to any event within 120 days such amendment, an alternative amendment may be effectuated with the consent of the Required Lenders, the Parent and the Sustainability Coordinators), and/or (ii) unless otherwise provided pursuant to the foregoing clause (i), with respect to any TRIR Impacting Transaction, the Total Recordable Incident Rate with respect to any entity acquired as part of a TRIR Impacting Transaction shall be excluded from the calculation of Total Recordable Incident Rate hereunder for the first twelve (12) months immediately following the end closing date of each calendar such TRIR Impacting Transaction. Any adjustment pursuant to this Section 2.21(g) (solely to the extent not set forth in an amendment to this Agreement) shall be described in reasonable detail in the applicable Pricing Certificate delivered with respect to the fiscal year in which the applicable transaction or event occurred. This clause (commencing with g) shall supersede any provisions in Section 10.01 to the calendar year ending December 31contrary. (h) To the extent any Sustainability Coordinator ceases to be a Lender (or, 2021an Affiliate of a Lender), the Parent shall use commercially reasonable efforts to seek to appoint another Person that is a Lender (or an Affiliate of a Lender) to fulfill the role of such Sustainability Coordinator. (i) The Parent shall deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar fiscal year may be by no later than 150 days (or such later date agreed by the Sustainability Coordinator, but in any event not to exceed 180 days) after the end of such fiscal year (commencing with delivery in 2023 for the fiscal year ended December 31, 2022); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers Parent may elect not to deliver a Pricing Certificate, Certificate for any such fiscal year. Any such election or any other failure to deliver a Pricing Certificate shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Borrowers to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)2.21(c) above. (hj) In Notwithstanding anything to the event Borrowers contrary set forth herein, (i) any amendment, modification or other supplement to the Resource Solutions Amount, Resource Solutions Threshold, Resource Solutions Target, Total Recordable Incident Rate, TRIR Threshold, TRIR Target A, TRIR Target B and/or Sustainability Table (including relevant provisions with respect thereto), as applicable, in connection with any of their Subsidiaries acquire or divest a businessResource Solutions Impacting Transaction, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall External Impacting Event and/or TRIR Impacting Transaction may be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition entered into in a manner and methodology that are writing executed only by the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to Parent, the Administrative Agent and the Lenders a certificate that (i) calculates each Sustainability Coordinator in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold accordance with Section 2.21(g), and (ii) restates Exhibit 1.7-1 any other amendment, consent, supplement or waiver with such adjusted amountsrespect to any provisions relating to any KPI Metric, andthis Section 2.21 and any provision with respect the KPI Metrics (including any Sustainability Fee Adjustment or any Sustainability Rate Adjustment and any definitions, if Lenders constituting Required Lenders have not objected schedule or exhibit relating to such adjusted Renewable Energy Generation Capacity Percentage Target provisions) or the establishment of any additional KPI Metrics with respect to certain environmental, social and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days governance targets of the Parent and its Subsidiaries shall only require approval of the Required Lenders, the Parent and the Sustainability Coordinators hereunder, in each case so long as the adjustments (increase, decrease or no adjustment) to the otherwise applicable Commitment Fee, Applicable Rate for Base Rate Loans and Applicable Rate for Term SOFR Loans/Letter of Credit Fee do not exceed (x) a 0.010% increase and/or decrease in the otherwise applicable Commitment Fee and (y) a 0.040% increase and/or decrease in the otherwise applicable Applicable Rate for Term SOFR Loans and Letter of Credit Fees and the Applicable Rate for Base Rate Loans (it being understood that any such deliverymodification having the effect of reducing the Commitment Fee, then Exhibit 1.7-1 Applicable Rate for Base Rate Loans or Applicable Rate for Term SOFR Loans to a level not otherwise permitted by this paragraph would require approval by all affected Lenders in accordance with Section 10.01). This clause (j) shall be deemed amended supersede any provisions in Section 10.01 to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdthe contrary.

Appears in 2 contracts

Samples: Credit Agreement (Casella Waste Systems Inc), Specified Acquisition Loan Joinder (Casella Waste Systems Inc)

Sustainability Adjustments. (a) DEI may deliver After the Amendment No. 1 Effective Date, the Borrowers’ Agent, in consultation with the Agent and a Pricing Certificate Lender selected by the Borrowers’ Agent to act as sustainability coordinator (in such capacity, the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a Pricing Certificate DateSustainability Coordinator”), which DEI shall be entitled to establish specified Key Performance Indicators (“KPI’s”) with respect to certain Environmental, Social and Governance (“ESG”) targets of the Company and its Subsidiaries. The Sustainability Coordinator, the Agent, the Required Lenders and the Borrowers may amend this Agreement (such amendment, the “ESG Amendment”) solely for the purpose of incorporating the KPI’s and other related provisions (the “ESG Pricing Provisions”) into this Agreement. Upon effectiveness of any such ESG Amendment, based on the Company’s and its Subsidiaries’ performance against the KPI’s, certain adjustments (increase, decrease or may no adjustment) to the Unused Line Fee and Applicable Margins will be made; provided that the amount of such adjustments shall not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, exceed (i) a 0.05% increase and/or a 0.05% decrease in the Applicable Percentage for Margins, in each case, determined based upon the Revolving Loans incurred by DEI shall be increased applicable rating on the effective date of the ESG Amendment or decreased (or neither increased nor decreased), as applicable, ii) a 0.01% increase and/or a 0.01% decrease in the per annum rate of the Unused Line Fee. The pricing adjustments pursuant to the KPI’s will require, among other things, reporting and validation of the measurement of the KPI’s in a manner that is aligned with the Sustainability Margin Adjustment Linked Loan Principles (as set forth published in May 2021 by the KPI Metrics Certificate delivered Loan Market Association, Asia Pacific Loan Market Association and Loan Syndications & Trading Association) and is to be agreed between the Borrowers’ Agent and the Sustainability Coordinator (each acting reasonably). Following the effectiveness of the ESG Amendment, any modification to the ESG Pricing Provisions which does not have the effect of allowing for the reduction of the Unused Line Fee or Applicable Margins to a level not otherwise permitted by this paragraph shall be subject only to the consent of the Required Lenders. The Sustainability Coordinator will (i) assist the Borrowers’ Agent in determining the ESG Pricing Provisions in connection with such Pricing Certificate, the ESG Amendment and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and assist the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted ’ Agent in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall preparing informational materials focused on ESG to be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, used in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demandESG Amendment. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 2 contracts

Samples: Credit Agreement (Herc Holdings Inc), Credit Agreement (Herc Holdings Inc)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate Prior to the twelve month anniversary of the Restatement Date, the Borrower, in consultation with the Administrative Agent and the Sustainability Structuring Agents, may in its sole discretion establish specified KPIs with respect to certain environmental, social and governance (“ESG”) goals, or identify certain external ESG ratings, of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of Borrower and its Subsidiaries (such calendar year (the date the Administrative Agent’s receipt thereofKPIs or ratings, each a Pricing Certificate DateKPI Metrics”), which DEI KPI Metrics shall be subject to thresholds or targets (in either case, such thresholds or targets, “SPTs”). The Administrative Agent and the Borrower (each acting reasonably and in consultation with the Sustainability Structuring Agents) may or may not dopropose an amendment to this Agreement (such amendment, in its sole discretionan “ESG Amendment”) solely for the purpose of incorporating the KPI Metrics, the SPTs and other related provisions (the “ESG Pricing Provisions”) into this Agreement. If DEI so delivers a Pricing Certificate in respect Any such ESG Amendment shall become effective upon (i) receipt by the Lenders of a calendar yearlender presentation in regard to the KPI Metrics and SPTs from the Borrower no later than five (5) Business Days before the proposed effective date of such proposed ESG Amendment, (ii) the posting of such proposed ESG Amendment to all Lenders and the Borrower, and (iii) the receipt by the Administrative Agent of executed signature pages and consents to such ESG Amendment from the Borrower, the Administrative Agent and Lenders comprising the Required Lenders. Upon the effectiveness of any such ESG Amendment, based on the Borrower’s performance against the KPI Metrics and SPTs, certain adjustments (increase, decrease or no adjustment) to (x) the otherwise applicable Applicable Margin may be made (such adjustments, the “ESG Applicable Margin Adjustments”); provided, that (i) the amount of such ESG Applicable Percentage for the Revolving Loans incurred by DEI Margin Adjustments shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth not exceed an increase and/or decrease of 0.05% per annum in the aggregate for all KPI Metrics Certificate delivered with such Pricing Certificate(the provisions of this proviso, the “Applicable Margin Sustainability Adjustment Limitations”) and (ii) in no event shall the Applicable Percentage Margin be less than 0% and (y) the otherwise applicable Commitment Fee may be made (such adjustments, the “ESG Commitment Fee Adjustments”, together with the ESG Applicable Margin Adjustments, the “ESG Adjustments”); provided, that (i) the amount of such ESG Commitment Fee Adjustments shall not exceed an increase and/or decrease of 0.01% per annum in the aggregate for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such all KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect (the provisions of a calendar yearthis proviso, the “Commitment Fee Sustainability Adjustment Limitations”, together with the Applicable Margin Sustainability Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoingLimitations, (A) if a Pricing Certificate is so delivered for any calendar yearcollectively, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate Limitations”) and (Bii) if in no Pricing Certificate is so delivered in respect of such calendar year, event shall the Sustainability Margin Adjustment and the Sustainability Commitment Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more less than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.010%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to doubt the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year ESG Adjustments shall not be cumulative year-over-yearyear and shall apply on an annual basis only. The adjustments pursuant KPI Metrics, the Borrower’s performance against the KPI Metrics, and any related ESG Adjustments resulting therefrom, will be determined based on certain Borrower certificates, reports and other documents, in each case, setting forth the KPI Metrics in a manner that is aligned with the Sustainability Linked Loan Principles (as last published in March 2022 by the Loan Market Association, Asia Pacific Loan Market Association and Loan Syndications & Trading Association, and as further amended, revised or updated from time to time), including with respect to the calculation, certification and measurement thereof. Following the effectiveness of an ESG Amendment, any modification to the ESG Pricing Provisions shall be subject only to the consent of the Borrower, the Administrative Agent and the Required Lenders so long as such modification does not have the effect of increasing or decreasing the Sustainability Adjustment Limitations set forth in the ESG Amendment. Each party to this Section made on any Sustainability Pricing Adjustment Date Agreement hereby agrees that the Facilities are not and shall only apply for the period not be a sustainability-linked loan unless and until the date immediately preceding effectiveness of any ESG Amendment. (b) The Lead Sustainability Structuring Agent will, to the next Sustainability extent requested by the Borrower in its sole discretion, assist the Borrower in (i) selecting relevant key performance indicators (“KPIs”) and the ESG Pricing Adjustment DateProvisions in connection with the ESG Amendment, (ii) coordination and review of the ESG Amendment and/or marketing materials focused on ESG to be used in connection with the ESG Amendment, (iii) engaging with sustainability assurance or other certification providers or external reviewers (where relevant) with respect to the KPI Metrics, and (iv) facilitating the dialogue between the Borrower and the Lenders in regard to the KPIs and assist the Borrower in responding to sustainability-related questions. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth This Section 2.25 shall supersede any provisions in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior 10.1 to the next Sustainability Pricing Adjustment Datecontrary. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 2 contracts

Samples: Credit Agreement (Extreme Networks Inc), Credit Agreement (Extreme Networks Inc)

Sustainability Adjustments. (a) DEI may deliver Following the delivery of a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Applicable KPI Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing CertificateCertificate in the manner and at the times described in this Pricing Schedule, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Applicable KPI Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to Section 1.7(c)this this Pricing Schedule. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Applicable KPI Margin Adjustment and the Sustainability Applicable KPI Fee Adjustment shall be determined effective as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.01(i)(viii) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Applicable KPI Margin Adjustment and the Sustainability Applicable KPI Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daycalculations, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin and the Commitment Fee Rate resulting from a Pricing Certificate and the Applicable KPI Margin Adjustment Date and the Applicable KPI Fee Adjustment related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 5.01(i)(viii)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% 5.0 basis points and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate will never be reduced or increased by more than 0.01%1.0 basis points, in each case pursuant to the Sustainability Applicable KPI Margin Adjustment and or the Sustainability Applicable KPI Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Commitment Fee Rate by reason of meeting application of one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding earlier of (i) June 30 of the next calendar year and (ii) the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is has been delivered by DEI within the period set forth in this Section 1.7Borrower and/or the Annual KPI Report has not been published by June 30 of any calendar year, the Sustainability Applicable KPI Margin Adjustment will be positive 0.05% 5.0 basis points and the Sustainability Applicable KPI Fee Adjustment will be positive 0.01% 1.0 basis points commencing on the last day of such period June 30 and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender is delivered and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the Annual KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicableReport is published. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 2 contracts

Samples: Credit Agreement (Ohio Power Co), Credit Agreement (Ohio Power Co)

Sustainability Adjustments. 42 (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to (together with the Administrative Agent applicable Sustainability Metric Auditor Report) in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day first day of the first month immediately following the receipt by Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.08(f) based upon the KPI Metrics 1 (Renewable Energy Procurement) and KPI 2 (Green Certification) for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery or delivery of an incomplete Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.08(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Term SOFR Spread and Daily SOFR Spread and the Base Rate Spread will never be reduced or increased by more than 0.050.02% and that in the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, aggregate pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several reference to the KPI Metrics Metric Targets in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the KPI 1 (Renewable Energy Procurement) or the KPI 2 (Green Certification) for the applicable Reference Year, within the period set forth in this Section 1.71.08(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.08(f). (d) If (i)(A) a Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment KPI 1 (Renewable Energy Procurement) or the KPI Metrics 2 (Green Certification) as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders Banks agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment the KPI 1 (Renewable Energy Procurement) or the KPI Metrics 2 (Green Certification) would have resulted in an increase in no adjustment or a lesser adjustment, as applicable, to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersBanks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent or Agent, any LenderBank), but in any event within 10 ten (10) Business Days after the Borrowers have Bxxxxxxx has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a The Borrower becomes aware shall deliver written notice of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by to the Administrative Agent of within ten (10) Business Days after obtaining knowledge thereof, which written notice from the Borrowers of shall describe such Pricing Certificate Inaccuracy in reasonable detail (and which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit description shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) shared with each Bank). It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.08(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Default Rate pursuant to Section 3.1(b) 2.07 prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any no responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 180 days following the end of each calendar year (commencing with the calendar year ending December 31, 20212022), Borrower may deliver a Pricing Certificate to Administrative Agent (and Administrative Agent shall promptly provide a copy to each Bank) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year the Borrowers Reference Year Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120180-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c1.08(c)). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 2 contracts

Samples: Credit Agreement (JBG SMITH Properties), Credit Agreement (JBG SMITH Properties)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to Effective as of the fifth Business Day following receipt by the Administrative Agent of a Sustainability Certificate delivered pursuant to Section 5.01(q) (such day, the “Sustainability Pricing Adjustment Date”) in respect of the most recently ended calendar year on any date prior to Reference Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year ending December 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2024, (i) the then Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to determined based upon the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit unused commitment fees shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to determined based upon the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, Each respective adjustment to the Sustainability Applicable Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year unused commitment fees shall be determined pursuant to Section 1.7(c). For purposes of apply from the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such applicable Sustainability Pricing Adjustment Date and ending end on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For If the avoidance of doubt, only one Pricing Borrower fails to deliver a Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.75.01(q) or any Sustainability Certificate shall be incomplete or otherwise fail to satisfy the requirements pertaining to a Sustainability Certificate (including failing to reflect the Sustainability Rate Adjustment, the Sustainability Margin Commitment Fee Adjustment and calculations in reasonable detail of the KPI Metrics, in each case, for the applicable Reference Year), the Sustainability Rate Adjustment will be positive 0.05% and the Sustainability Commitment Fee Adjustment will be positive 0.01% %, respectively, commencing on the fifth Business Day following the last day such Sustainability Certificate should have been delivered pursuant to the terms of such period Section 5.01(q) and continuing shall continue until the day immediately prior fifth Business Day following receipt by the Administrative Agent of a complete and satisfactory Sustainability Certificate for such Reference Year. (c) For the avoidance of doubt, only one Sustainability Certificate may be delivered in any Reference Year. Any adjustment to the next Applicable Margin or the unused commitment fees by reference to any of the KPI Metrics in any Reference Year shall not be cumulative year-over-year and shall only apply until the following Sustainability Pricing Adjustment Date. The Applicable Margin will never be adjusted by more than negative 0.05% and the unused commitment fees will never be adjusted by more than negative 0.01%, in each case below the levels assessed during the Reference Year ending December 31, 2024 during any Reference Year (provided that the total adjustment in respect of the Applicable Margin may be up to 0.1% and in respect of the unused commitment fees may be up to 0.02% during any Reference Year, in each case to the extent such adjustment goes from negative to positive (or vice versa)) (the “Sustainability Adjustment”). (d) Notwithstanding anything to the contrary contained herein, (including any provision of Section 9.02 requiring the consent of “each Lender directly affected thereby” for reductions in interest rates) an amendment relating to (i) the definition of any of LMI Jobs, LMI Loans, Worker Solutions Enrollment, respectively, (ii) this Section 2.18 or (iii) the Sustainability Table may be made with the consent of the Borrower, the Administrative Agent, the Sustainability Structuring Agent and the Required Lenders; provided, that, any amendment relating to the Applicable Margin pursuant to any Sustainability Rate Adjustment and the unused commitment fees pursuant to the Sustainability Commitment Fee Adjustment in excess of the Sustainability Adjustment shall require the consent of “each Lender directly affected thereby” in accordance with Section 9.02. (e) If (i)(A) a Borrower or any Lender the Administrative Agent becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) andand the Administrative Agent notifies the Borrower thereof, in the case or (B) any Lender becomes aware of any Lender, Sustainability Certificate Inaccuracy and such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, delivers a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (BC) the Borrowers and the Lenders agree that there was Borrower becomes aware of a Pricing Sustainability Certificate Inaccuracy at and delivers notice thereof to the time of delivery of a Pricing CertificateAdministrative Agent, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages Margin or the unused commitment fees for any applicable period, (x) commencing on the Revolving Loans incurred by DEI fifth Business Day following delivery of a corrected Sustainability Certificate to the Administrative Agent, the Applicable Margin and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers unused commitment fees shall be obligated adjusted to reflect such corrected calculations of the Sustainability Rate Adjustment and the Sustainability Commitment Fee Adjustment and (y) the Borrower shall pay to the Administrative Agent for the account of the applicable Lenders, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent or Agent, any Lender), but in any event within 10 ten (10) Business Days after such demand by the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Administrative Agent (the “Certificate InaccuracyInaccuracy Payment Date”), an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Any Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.18(e) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any Any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the default rate provided in pursuant to Section 3.1(b2.10(c) prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither If any Sustainability Recalculation Event (as defined below) occurs and either (i) the Borrower provides the Administrative Agent nor with a written request to amend the Co-Sustainability Structuring provisions hereof as a consequence thereof, or (ii) the Administrative Agent shall have any responsibility for notifies the Borrower that the Required Lenders requests such an amendment (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations it being understood and agreed that are part of or related to any such calculationnotice may be given before or after such Sustainability Recalculation Event has occurred), then (A) set forth in any Pricing Certificate (and the Borrower, the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on shall negotiate in good faith to amend the provisions hereof for the period from and after the occurrence of such Sustainability Recalculation Event, and (B) the provisions of this Agreement in effect immediately prior to such Sustainability Recalculation Event shall apply for a period of not more than 30 days (unless such provisions have been amended in accordance herewith or such notice has been withdrawn). If, after 30 days following any such certificatenotice, without further inquiry). (g) As soon as available and in any event within 120 days following the end consent of each calendar year (commencing with the calendar year ending December 31Borrower, 2021)the Administrative Agent, a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Structuring Agent and the requisite Lenders under Section 9.02 has not been obtained, there will be no Sustainability Rate Adjustment and Sustainability Commitment Fee Adjustment being applied as set forth until the parties agree upon any such adjustments in Section 1.7(c). (h) In accordance with the event Borrowers or any terms hereof, and for the period thereafter, no party to this Agreement shall, without the prior written consent of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent, Sustainability Structuring Agent and the Lenders Borrower, make any public or private representations, or statements or otherwise of this Agreement and the credit facility evidenced herein as a certificate that sustainability-linked loan. For purposes of this paragraph, “Sustainability Recalculation Event” means (i) calculates any acquisition, disposition, investment, merger or similar transaction or series of related transactions consummated by the Borrower and its Subsidiaries whereby, as a result of the consummation of such transaction or series of related transactions any of the Baseline of the KPI Metrics would reasonably be expected to be (as determined in reasonable detail good faith by the Borrower), or shall be, adjusted by 10% or more (on a consolidated basis) as compared to the KPI Metrics in effect immediately prior to the consummation of such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and transaction or (ii) restates Exhibit 1.7-1 any Change in Law applicable to any party hereto the result of which shall (A) prohibit or modify any sustainability calculation hereunder or cause any other violation of any sustainability provision hereunder, or impose or modify any reporting obligation in respect thereof, (B) cause the Borrower to fail to attain or maintain any KPI Metric or target or threshold with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected respect thereto or (C) prohibit or otherwise limit the Borrower’s ability to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdmake or maintain the Loans hereunder after applying the sustainability provisions hereunder.

Appears in 2 contracts

Samples: Senior Secured Revolving Credit Agreement (Lafayette Square USA, Inc.), Senior Secured Revolving Credit Agreement (Lafayette Square USA, Inc.)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations Each of the Sustainability Margin Adjustment and the Sustainability Commitment Fee Adjustment in such KPI Metrics Certificate shall be effective on the Sustainability Adjustment Date and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Margin and the Commitment Fee Percentage resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one the Sustainability Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered only once in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% 5.00 basis points and that the Applicable Commitment Fee Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%1.00 basis points, in each case pursuant to the Sustainability Margin Adjustment and or the Sustainability Commitment Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year (the “Maximum Adjustment”). For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin due to a Sustainability Margin Adjustment or such Facility any adjustment to the Commitment Fee by reason of meeting one or several KPI Metrics Percentage due to a Sustainability Commitment Fee Adjustment in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It If the Borrower fails to provide the Administrative Agent with the Sustainability Pricing Certificate or one or more of the KPI Metrics for any calendar year within the timeframe indicated in Section 5.2(d), the Applicable Margin shall be increased by 1.67 basis points and the Commitment Fee Percentage shall be increased by 0.34 basis points for each applicable Key Performance Indicator for which a KPI Metric has not been submitted, commencing on the day by which such Sustainability Pricing Certificate was required to have been delivered pursuant to the terms of Section 5.2(d) and continuing until the Borrower submits another Sustainability Pricing Certificate for the subsequent calendar year; provided that it is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Applicable Margin Adjustment will be positive 0.05% and the Sustainability Commitment Fee Adjustment Percentage, as applicable, will never be positive 0.01% commencing on increased by more than the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment DateMaximum Adjustment. (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the any Sustainability Margin Adjustment, the Sustainability Fee Applicable Rate Adjustment or the any KPI Metrics Metric calculation as reported in a Sustainability Pricing Certificate (any such material inaccuracy, a “Sustainability Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent and the Sustainability Structuring Agent describing such Sustainability Pricing Certificate Inaccuracy in reasonable detail (which description shall be promptly shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Sustainability Pricing Certificate Inaccuracy at the time of delivery of a Sustainability Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment Applicable Rate Adjustments or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Margin and/or Commitment Fee for Commitments under the DEI Sublimit Percentage for any applicable period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Lenders promptly on following written demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Code, automatically and without further action by the Administrative Agent or Agent, any Lender), but in any event within 10 Business Days after the Borrowers have Borrower has received written notice in reasonable detail of, or have has agreed in writing that there was, a Sustainability Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees or fee that should have been paid for such period over (2) the amount of interest and fees or fee actually paid for such period. If a the Borrower becomes aware of any Sustainability Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Margin or Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Sustainability Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment or the KPI Metrics, as applicableapplicable and be certified to by a Responsible Officer of the Borrower), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for Margin or the Revolving Loans incurred by DEI and the Facility Commitment Fee for Commitments under the DEI Sublimit Percentage, as applicable, shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Sustainability Pricing Certificate Inaccuracy with respect to any applicable period shall not constitute a Default or Event of Default; provided, that, Default unless the Borrowers comply with Borrower fails to make a payment required by the foregoing terms of this Section 1.7 2.25(d) with respect to such Sustainability Pricing Certificate InaccuracyInaccuracy following demand for payment by the Administrative Agent made in accordance with the foregoing terms of this Section 2.25(d). Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Code, (a) any additional amounts required to be paid pursuant the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default or Event of Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Applicable Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in the Initial KPI Metrics Report, any KPI Metrics Report or any Sustainability Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (hf) In the event Borrowers or of a Regulatory Change in relation to any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWKey Performance Indicator, the Renewable Energy Generation Capacity Percentage Target Borrower and the Renewable Energy Generation Capacity Percentage Threshold Sustainability Structuring Agent shall negotiate in good faith, by no later than 60 days following such Regulatory Change any necessary amendment, modification or other supplement to Schedule 1.3 (Sustainability Performance Thresholds) (and any component definitions thereof). Such amendment, modification or other supplement, shall be adjusted consented to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to by the Administrative Agent, Sustainability Structuring Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target Borrower and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if will take effect so long as Lenders constituting Required Lenders have do not objected object to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold changes within 5 five Business Days after notice of such deliveryproposed amendment, then Exhibit 1.7-1 modification or other supplement. If the Borrower and the Structuring Sustainability Agent do not agree to any such amendment, modification or supplement following the 60 day period, then, upon the written agreement among the Sustainability Structuring Agent, the Borrower and the Administrative Agent, which will take effect so long as Lenders constituting Required Lenders do not object to such agreement within five Business Days after notice of such proposed agreement, the Sustainability Applicable Rate Adjustment shall cease to apply for the relevant Key Performance Indicator and, notwithstanding anything to the contrary herein, for all purposes hereunder, the Sustainability Applicable Rate Adjustment for such Key Performance Indicator shall be deemed amended to reflect be zero. In the case such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdKey Performance Indicator no longer applies, the Borrower will then cease to refer to the applicable Key Performance Indicator in the Sustainability Pricing Certificate.

Appears in 2 contracts

Samples: Credit Agreement (Micron Technology Inc), Credit Agreement (Micron Technology Inc)

Sustainability Adjustments. The Parent, in consultation with the Administrative Agent, shall be entitled to establish specified key performance indicators (a“KPIs”) DEI with respect to certain environmental, social and governance (“ESG”) targets of the Parent and its Subsidiaries. The Administrative Agent and the Borrowers may deliver a amend this Agreement (such amendment, the “ESG Amendment”) with respect to one or more Class of Loans and/or Commitments solely for the purpose of incorporating the KPIs and other related provisions (the “ESG Pricing Certificate Provisions”) into this Agreement, and any such amendment shall become effective at 5:00 p.m., New York City time, on the tenth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders of the applicable Class and the Borrowers unless, prior to such time, Lenders comprising the Majority Lenders of any applicable Class have delivered to the Administrative Agent in respect (who shall promptly notify the Parent) written notice that such Majority Lenders object to such ESG Amendment. In the event that the Majority Lenders of any Class deliver a written notice objecting to any such ESG Amendment, an alternative ESG Amendment applicable to such Class of Loans may be effectuated with the consent of the most recently ended calendar year on any date prior to the date that is 120 days following the last day Majority Lenders of such calendar year (Class, the date Parent and the Administrative Agent. Upon the effectiveness of any such ESG Amendment, based on the Parent’s receipt thereofand/or its Subsidiaries’ performance against the KPIs, each a “Pricing Certificate Date”)certain adjustments (increase, which DEI may decrease or may no adjustment) to the otherwise applicable Applicable Commitment Fee Rate and/or Applicable Margin for such Class of Loans and Commitments will be made; provided that the amount of such adjustments shall not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, exceed (i) in the case of the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased)Commitment Fee Rate, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, an increase and/or decrease of 0.05% and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than Margin, an increase and/or decrease of 0.05% and %, provided that in no event shall the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never Margin be reduced or increased by more less than 0.01%, zero. The pricing adjustments pursuant to the Sustainability Margin Adjustment KPIs will require, among other things, reporting and validation of the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For measurement of the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported KPIs in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in manner that is agreed between the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Parent and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after each acting reasonably). Following the occurrence effectiveness of an actual or deemed entry of an order for relief with respect to the ESG Amendment: (i) any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal modification to the excess ESG Pricing Provisions which has the effect of (1x) reducing the amount Applicable Margin and/or the Applicable Commitment Fee Rate to a level not otherwise permitted by this Section 1.07 shall (in each case) be subject to the consent of interest and fees that should have been paid all Lenders; and (ii) any other modification to the ESG Pricing Provisions (other than as provided for such period over in clause (2i) above) shall be subject only to the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation consent of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate InaccuracyMajority Lenders. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided1.07, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold no ESG Amendment shall be adjusted effective as to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target any Existing Term B Loans, and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver no decrease to the Administrative Agent and Applicable Margin applicable to the Lenders a certificate that (i) calculates Existing Term B Loans may be effected, in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amountseach case, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days without the consent of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdeach affected Existing Term B Lender.

Appears in 2 contracts

Samples: Credit Agreement (Iron Mountain Inc), Credit Agreement (Iron Mountain Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to (together with the Administrative Agent applicable Sustainability Metric Auditor Report) in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day first day of the first month immediately following the receipt by Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.08(f) based upon the KPI Metrics 1 (Renewable Energy Procurement) and KPI 2 (Green Certification) for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery or delivery of an incomplete Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.08(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Term SOFR Spread and Daily SOFR Spread and the Base Rate Spread will never be reduced or increased by more than 0.050.02% and that in the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, aggregate pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several reference to the KPI Metrics Metric Targets in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the KPI 1 (Renewable Energy Procurement) or the KPI 2 (Green Certification) for the applicable Reference Year, within the period set forth in this Section 1.71.08(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.08(f). (d) If (i)(A) a Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment KPI 1 (Renewable Energy Procurement) or the KPI Metrics 2 (Green Certification) as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders Banks agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment the KPI 1 (Renewable Energy Procurement) or the KPI Metrics 2 (Green Certification) would have resulted in an increase in no adjustment or a lesser adjustment, as applicable, to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersBanks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent or Agent, any LenderBank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a The Borrower becomes aware shall deliver written notice of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by to the Administrative Agent of within ten (10) Business Days after obtaining knowledge thereof, which written notice from the Borrowers of shall describe such Pricing Certificate Inaccuracy in reasonable detail (and which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit description shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) shared with each Bank). It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.08(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Default Rate pursuant to Section 3.1(b) 2.07 prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any no responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 180 days following the end of each calendar year (commencing with the calendar year ending December 31, 20212022), Borrower may deliver a Pricing Certificate to Administrative Agent (and Administrative Agent shall promptly provide a copy to each Bank) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year the Borrowers Reference Year Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120180-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c1.08(c)). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 2 contracts

Samples: Credit Agreement (JBG SMITH Properties), Credit Agreement (JBG SMITH Properties)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate pursuant to the Administrative Agent Section 6.14(a) in respect of the its most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofAnnual Period, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage Margin (including for purposes of determining the Revolving Loans incurred by DEI Commitment Fee) shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Pricing Certificate Date for such Administrative Agent of a Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations calculation of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin (including for purposes of determining the Commitment Fee) resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-delivery of a Pricing Certificate, zero the last day such Pricing CertificatesCertificate could have been delivered pursuant to Section 6.14(a)); provided that if any Sustainability Pricing Adjustment Date shall occur before the last day of an Interest Period, no change to the Applicable Margin as a result of the Sustainability Margin Adjustment shall be effective for purposes of Section 2.6 until the first day of the immediately succeeding Interest Period. (b) For the avoidance of doubt, it is understood and agreed that (i) only one Pricing Certificate may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%Annual Period, pursuant to the (ii) any Sustainability Margin Adjustment shall be iterative and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any year (each applicable Sustainability Pricing Margin Adjustment Date shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Margin Adjustment Dateis due to take place) and (iii) Sustainalytics delivered a second party opinion to the Borrower on August 29, 2023. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.76.14(a), the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% five (5) basis points, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 6.14(a) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Administrative Agent and a new Applicable Margin is determined pursuant to Section 2.13(a) above and, pending delivery of a Pricing Adjustment DateCertificate no Default or Event of Default shall occur in relation to the failure to deliver such Pricing Certificate. (d) If (i)(A) a any of the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a on the applicable Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 thirty (30) Business Days after obtaining knowledge thereof, thereof delivers a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description who shall be shared with furnish a copy to each Lender of the Lenders and the Borrowers), Borrower) or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a the relevant Pricing Certificate, Certificate and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit for any such period, then the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (acting at the direction of the Required Lenders) (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, automatically and without further action by the Administrative Agent or any Lender), but in any no event within 10 less than ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to to: (x) the excess of (1) the amount of interest and fees that should have been paid for such period over (2y) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit for any such period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 2 contracts

Samples: Credit Agreement (Cemex Sab De Cv), Credit Agreement (Cemex Sab De Cv)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) Sustainability Grid Notice may be delivered in respect of any calendar fiscal year. It is further understood , and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Rate by reason of meeting one or several KPI Sustainability Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (db) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Grid Metrics as reported in a Pricing Certificate Sustainability Grid Notice (any such material inaccuracy, a “Pricing Certificate Sustainability Grid Inaccuracy”) and, in the case of any Lender, and such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Sustainability Grid Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower becomes aware of a Sustainability Grid Inaccuracy and the Lenders Borrower and the Administrative Agent shall mutually agree that there was a Pricing Certificate Sustainability Grid Inaccuracy at the time of delivery of a Pricing CertificateSustainability Grid Notice, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the a higher Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Lenders promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event Bankruptcy Event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have Borrower has received written notice ofof (in the case of clause (b)(i)(A) above), or have has agreed in writing that there waswas (in the case of clause (b)(i)(B) above), a Pricing Certificate Sustainability Grid Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Sustainability Grid Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.23 and Section 5.02(f) with respect to such Pricing Certificate Sustainability Grid Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event Bankruptcy Event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after a earlier to occur of (i) written demand is made for such payment by the Administrative Agent in accordance with such paragraphparagraph or (ii) 10 Business Days after the Borrower has received written notice of (in the case of clause (b)(i)(A) above), or has agreed in writing that there was (in the case of clause (d)(i)(B) above), a Sustainability Grid Inaccuracy (such date, the “Sustainability Grid Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Sustainability Grid Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Sustainability Grid Inaccuracy Payment Date or shall accrue interest at the rate provided set forth in Section 3.1(b2.13(d) prior to the date that is 10 Business Days after such a demandSustainability Grid Inaccuracy Payment Date. (fc) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment Metric (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate Sustainability Grid Notice (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gd) As soon as available and in any event within 120 180 days following the end of each calendar fiscal year of the Borrower (commencing with the calendar fiscal year ending December 31, 2021), the Borrower shall deliver to the Administrative Agent and the Lenders a Pricing Certificate Sustainability Grid Notice for the most recently-recently ended calendar year may be provided by DEI as set forth in this Section 1.7fiscal year; provided, that, for any calendar fiscal year the Borrowers Borrower may elect not to deliver a Pricing CertificateSustainability Grid Notice, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate Sustainability Grid Notice by the end of such 120180-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver no adjustment to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdApplicable Rate.

Appears in 2 contracts

Samples: Revolving Credit Agreement (Brixmor Operating Partnership LP), Term Loan Agreement (Brixmor Operating Partnership LP)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to Following the date that is 120 days following on which the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers Company provides a Pricing Certificate in respect of a calendar yearits then most recently ended Annual Period, (i) the Applicable Percentage Rate for purposes of calculating interest on the Revolving Loans incurred by DEI and the Letter of Credit Fee shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage Rate for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth 5th Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.01(c) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and calculations, as applicable, therein (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to Section 6.01(c)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood Annual Period, and agreed that the Applicable Percentage Rate for Revolving the Loans incurred and the Letter of Credit Fee will not be reduced or increased pursuant to this Section 2.19 by DEI more than 4.5 basis points (such limit, the “Maximum Margin Adjustment”), and the Applicable Rate for the Facility Fee will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%0.5 basis points, in each case pursuant to the Sustainability Margin Adjustment and or the Sustainability Fee Adjustment, respectivelyas applicable, on in respect of any Sustainability Pricing Adjustment DateAnnual Period (such limit, the “Maximum Facility Fee Adjustment”). For the avoidance of doubt, any adjustment to the Applicable Percentages Rate for such Revolving the Loans or such and the Letter of Credit Fee, and/or the Applicable Rate for the Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if If no such Pricing Certificate with respect to a calendar year is delivered by DEI the Company within the period set forth in this Section 1.76.01(c), the Sustainability Margin Adjustment will be positive 0.05% 4.5 basis points and the Sustainability Fee Adjustment will be positive 0.01% 0.5 basis points commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 6.01(c) and continuing until the day immediately prior Company delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower any of the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a on the applicable Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, thereof delivers a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description who shall be shared with furnish a copy to each Lender of the Lenders and the Borrowers), Company) or (B) the Borrowers Company and the Required Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a the relevant Pricing Certificate, Certificate and (ii) a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages Rate for the Revolving Loans incurred by DEI and the Letter of Credit Fee, and the Applicable Rate for the Facility Fee for Commitments under the DEI Sublimit for any such period, then the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Company under any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, automatically and without further action by the Administrative Agent or any Lender), but in any no event within more than 10 Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to to: the excess of (1x) the amount of interest and fees that should would have been paid payable for such period at the rate giving effect to the proper Sustainability Fee Adjustment or Sustainability Margin Adjustment, as applicable over (2y) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages Rate for the Revolving Loans incurred by DEI and the Letter of Credit Fee, and the Applicable Rate for the Facility Fee for Commitments under the DEI Sublimit for any such period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages Rate for the Revolving Loans incurred by DEI and the Letter of Credit Fee, and the Applicable Rate for purpose of calculating interest on the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Notwithstanding anything herein to the contrary, no Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; providedDefault under this Agreement, that, so long as the Borrowers comply Company complies with the terms of this Section 1.7 2.19 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph to clause (d) above shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphclause (d) above, (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) ), and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. In the event the Company fails to comply with the terms of this Section 2.19, the Lenders’ sole recourse with respect to such non-compliance shall be limited to the True-Up Amount. (f) Each party hereto hereby agrees that neither the The Administrative Agent nor the Co-Sustainability Structuring Agent shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Margin Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any KPI Metrics Report or Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 2 contracts

Samples: Credit Agreement (Analog Devices Inc), Credit Agreement (Analog Devices Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.06(f) based upon the KPI Metrics Carbon Intensity and OSHA Incident Amount (Three-Year Average) for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Rate resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.06(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate (i) with respect to SOFR Advances and Base Rate Advances will never be reduced or increased by more than 0.05% and that (ii) with respect to the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, in each case, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Rate by reason of meeting one or several reference to the KPI Metrics Metric Targets in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the Carbon Intensity or the OSHA Incident Amount (Three-Year Average) for the applicable Reference Year, within the period set forth in this Section 1.71.06(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Rate commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.06(f). (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment Carbon Intensity or the KPI Metrics OSHA Incident Amount (Three-Year Average) as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, delivers a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment the Carbon Intensity or the KPI Metrics OSHA Incident Amount (Three-Year Average) would have resulted in no adjustment or an increase in to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.06(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by Administrative the Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the default rate provided in pursuant to Section 3.1(b2.07(b) prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the any Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 20212023), the Borrower may deliver a Pricing Certificate to the Agent (and the Agent shall promptly provide a copy to each Lender) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c1.06(c). (h) ). In the event Borrowers or any of their Subsidiaries acquire or divest the Borrower’s fiscal year is changed to a business, facility or Subsidiary with Capacity in excess of 100MWnon-calendar year fiscal year, the Renewable Energy Generation Capacity Percentage Target and Borrower will be permitted to adjust the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that timing of delivery of the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition Pricing Certificate at its election in a manner and methodology that are intended to maintain consistency with the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdforegoing.

Appears in 2 contracts

Samples: Five Year Credit Agreement (Arizona Public Service Co), Credit Agreement (Arizona Public Service Co)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to year, commencing with the date that is 120 days following the last day of such calendar year (ending December 31, 2023 and ending with the date the Administrative Agent’s receipt thereofcalendar year ending December 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2028, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for commitment fee set forth in Section 2.11(a) (the Facility Fee for Commitments under the DEI Sublimit “Commitment Fee”) shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment shall be determined applied as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.22(f) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate and the Commitment Fee resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing 84 DB3/ 204690278.10 Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 2.22(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Rate or such Facility Commitment Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 2 contracts

Samples: Revolving Credit and Term Loan Agreement (Veris Residential, L.P.), Revolving Credit and Term Loan Agreement (Veris Residential, L.P.)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (iA) the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the The Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to effective on the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Margin resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one the Sustainability Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered only once in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, 5.00 basis points pursuant to the Sustainability Margin Adjustment and during any calendar year (the Sustainability Fee “Maximum Adjustment, respectively, on any Sustainability Pricing Adjustment Date”). For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics Margin due to a Sustainability Margin Adjustment in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It If the Borrower fails to provide the Administrative Agent with the Sustainability Pricing Certificate or one or more of the KPI Metrics for any calendar year within the timeframe indicated in Section 5.2(d), the Applicable Margin shall be increased by 1.67 basis points for each applicable Key Performance Indicator for which a KPI Metric has not been submitted, commencing on the day by which such Sustainability Pricing Certificate was required to have been delivered pursuant to the terms of Section 5.2(d) and continuing until the Borrower submits another Sustainability Pricing Certificate for the subsequent calendar year; provided that it is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered the Applicable Margin will never be increased by DEI within more than the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment DateMaximum Adjustment. (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the any Sustainability Margin Adjustment, the Sustainability Fee Applicable Rate Adjustment or the any KPI Metrics Metric calculation as reported in a Sustainability Pricing Certificate (any such material inaccuracy, a “Sustainability Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent and the Sustainability Structuring Agent describing such Sustainability Pricing Certificate Inaccuracy in reasonable detail (which description shall be promptly shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Sustainability Pricing Certificate Inaccuracy at the time of delivery of a Sustainability Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment Applicable Rate Adjustments or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any applicable period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Lenders promptly on following written demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Code, automatically and without further action by the Administrative Agent or Agent, any Lender), but in any event within 10 Business Days after the Borrowers have Borrower has received written notice in reasonable detail of, or have has agreed in writing that there was, a Sustainability Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a the Borrower becomes aware of any Sustainability Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Sustainability Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment or the KPI Metrics, as applicableapplicable and be certified to by a Responsible Officer of the Borrower), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Sustainability Pricing Certificate Inaccuracy with respect to any applicable period shall not constitute a Default or Event of Default; provided, that, Default unless the Borrowers comply with Borrower fails to make a payment required by the foregoing terms of this Section 1.7 2.25(d) with respect to such Sustainability Pricing Certificate InaccuracyInaccuracy following demand for payment by the Administrative Agent made in accordance with the foregoing terms of this Section 2.25(d). Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Code, (a) any additional amounts required to be paid pursuant the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default or Event of Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Applicable Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in the Initial KPI Metrics Report, any KPI Metrics Report or any Sustainability Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (hf) In the event Borrowers or of a Regulatory Change in relation to any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWKey Performance Indicator, the Renewable Energy Generation Capacity Percentage Target Borrower and the Renewable Energy Generation Capacity Percentage Threshold Sustainability Structuring Agent shall negotiate in good faith, by no later than 60 days following such Regulatory Change any necessary amendment, modification or other supplement to Schedule 1.3 (Sustainability Performance Thresholds) (and any component definitions thereof). Such amendment, modification or other supplement, shall be adjusted consented to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to by the Administrative Agent, Sustainability Structuring Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target Borrower and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if will take effect so long as Lenders constituting Required Lenders have do not objected object to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold changes within 5 five Business Days after notice of such deliveryproposed amendment, then Exhibit 1.7-1 modification or other supplement. If the Borrower and the Structuring Sustainability Agent do not agree to any such amendment, modification or supplement following the 60 day period, then, upon the written agreement among the Sustainability Structuring Agent, the Borrower and the Administrative Agent, which will take effect so long as Lenders constituting Required Lenders do not object to such agreement within five Business Days after notice of such proposed agreement, the Sustainability Applicable Rate Adjustment shall cease to apply for the relevant Key Performance Indicator and, notwithstanding anything to the contrary herein, for all purposes hereunder, the Sustainability Applicable Rate Adjustment for such Key Performance Indicator shall be deemed amended to reflect be zero. In the case such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdKey Performance Indicator no longer applies, the Borrower will then cease to refer to the applicable Key Performance Indicator in the Sustainability Pricing Certificate.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Micron Technology Inc), Term Loan Credit Agreement (Micron Technology Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Parent or the Borrower provides a Pricing Sustainability Certificate to the Administrative Agent in respect of the most recently ended calendar fiscal year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofending December 31, each a “Pricing Certificate Date”)2025, which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased)increased, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment shall be determined applied retroactively to commence as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate December 31, 2025 based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.050.25% and that in the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, aggregate pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Sustainability Certificate with respect to a calendar year is delivered by DEI Parent or the Borrower with regard to the fiscal year ended December 31, 2025 within the period set forth in this Section 1.78.01(r), the Sustainability Margin Adjustment KPI Threshold will be positive 0.05% and deemed not to have been met until Parent or the Borrower delivers a Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for such fiscal year. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Rate Adjustment or the KPI Metrics Metric as reported in a Pricing the Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) and, in the case of any Lender, and such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, delivers a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), Borrower) or (B) the Borrowers and the Lenders agree that there was a Pricing Loan Party becomes aware of a Sustainability Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics Metric would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Lenders promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 fifteen (15) Business Days after the Borrowers have Borrower has received written demand from the Administrative Agent following receipt of a written notice offrom any Lender of (in the case of Section 5.07(d)(i)(A) and Section 5.07(d)(ii) above), or have agreed in writing that there waswas (in the case of Section 5.07(d)(i)(B) above), a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If a Borrower any Loan Party becomes aware of any Pricing Sustainability Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics Metric would have resulted in a decrease in the Applicable Percentages for Margin remaining the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit same for any period, then, upon receipt by the Administrative Agent of notice from Parent or the Borrowers Borrower of such Pricing Sustainability Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI MetricsMetric, as applicable), commencing on the fifth (5th) Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin shall be adjusted (but only with respect to periods commencing after such fifth (5th) Business Day) to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI MetricsMetric, as applicable, for all periods occurring no sooner than five (5) Business Days after receipt by the Administrative Agent of such notice. For the avoidance of any doubt, the parties agree that any such adjustment to reflect a decrease in the Applicable Margin for any period shall only be effective on a prospective basis and shall not require any adjustments to amounts previously paid by the Borrower prior to the discovery of a Sustainability Certificate Inaccuracy. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, provided that the Borrowers comply Borrower complies with the terms of this Section 1.7 5.07(d) and Section 8.01(s) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 earlier to occur of (x) fifteen (15) Business Days after a written demand is made for such payment by the Administrative Agent (in accordance with the case of Section 5.07(d)(i)(A) and Section 5.07(d)(ii) above) or (y) fifteen (15) Business Days after the Borrower has agreed in writing that there was (in the case of Section 5.07(d)(i)(B) above), a Sustainability Certificate Inaccuracy (such paragraphdate, the “Certificate Inaccuracy Payment Date”), (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the post-default rate provided set forth in Section 3.1(b3.02(c) prior to the date that is 10 Business Days after Certificate Inaccuracy Payment Date. In the event the Borrower fails to comply with the terms of this Section 5.07(e), the Lenders’ sole recourse with respect to such a demandnon-compliance shall be limited to the True-Up Amount. (f) Each party hereto hereby agrees that neither Upon the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower occurrence of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any Recalculation Event, upon the written request of the data Borrower or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (the Majority Lenders, the Majority Lenders and the Administrative Agent and Borrower shall negotiate in good faith to amend the Co-KPI Metric implicated by such Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be Recalculation Event; provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, until such election amendment shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWbecome effective, the Renewable Energy Generation Capacity Percentage Target KPI Metric and the Renewable Energy Generation Capacity Percentage Threshold KPI Thresholds shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same place as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdunamended.

Appears in 1 contract

Samples: Senior Secured First Lien Term Loan Credit Agreement (Clean Energy Fuels Corp.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar fiscal year (commencing with the date the Administrative Agent’s receipt thereoffiscal year ending September 30, each a “Pricing Certificate Date”2023), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Interest Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year this Section 2.13 (but in no event shall be determined pursuant to Section 1.7(cany adjustment result in the Applicable Interest Rate Percentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.13(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Rate Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Interest Rate Percentage resulting from a Pricing Certificate, and the Sustainability Pricing Rate Adjustment Date related thereto, shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.13(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). Notwithstanding the foregoing or anything to the contrary herein, in the event that a Pricing Certificate has been delivered, and the Company has not delivered the Historical Report, the Sustainability Rate Adjustment with respect to such fiscal year shall be the Threshold Adjustment. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearfiscal year of the Company. It is further understood and agreed that the any Sustainability Rate Adjustment made for any Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any adjustment increases or reductions to the Applicable Percentages for Interest Rate Percentage resulting therefrom shall be reset to “zero” following the conclusion of such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Applicable Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year or Historical Report is delivered by DEI the Company within the period periods set forth in this Section 1.7Sections 2.13(i) or (j), respectively, the Sustainability Margin Rate Adjustment will be positive 0.05% and (such positive rate, the Sustainability Fee Adjustment will be positive 0.01% “Threshold Adjustment”) commencing on the last day such Pricing Certificate or Historical Report could have been delivered pursuant to the terms of such period Sections 2.13(i) or (j), respectively, and continuing until the day immediately prior Company delivers such certificate or report to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Rate Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each other Lender and the Borrowers)Company) and, in the case of such Lender, the Required Lenders agree in good faith that such material inaccuracy has occurred, or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Interest Rate Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower Loan Party under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)of the United States, automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, was a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If the Company or a Borrower Lender becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Interest Rate Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Interest Rate Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall not be deemed to be materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 2.13(d), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time that such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, Default so long as the Borrowers comply Company complies with the terms of this Section 1.7 2.13(d) with respect to any such Pricing Certificate InaccuracyInaccuracy that would have resulted in an increase in the Applicable Interest Rate Percentage for any period. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower Loan Party under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)of the United States, (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph subsection (d) shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d), (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. If the event the Company fails to comply with Section 2.13(d) or (e), the Lenders’ sole recourse with respect thereto shall be the True-Up Amount. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Adjustment or Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the or Historical Report. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). Each party hereto hereby further agrees that neither the Administrative Agent nor the Sustainability Coordinator make any assurances as to (i) whether this Agreement meets any Company or Lender criteria or expectations with regard to sustainability performance, or (ii) whether the characteristics of the relevant sustainability performance targets and/or key performance indicators included in the Agreement, including any sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-linked credit facilities. (g) As soon as available and in To the extent any event within 120 days following occurs (which would include, without limitation, a material disposition or material acquisition) which, in the end opinion of each calendar year the Company and the Sustainability Coordinator, acting reasonably, means that the Sustainability Target or Sustainability Threshold set forth in the Sustainability Table is no longer applicable given changes in the Company’s structure, then (commencing i) the Company and the Sustainability Coordinator will report to the Lenders that the Sustainability Target and Sustainability Threshold will no longer apply and (ii) the Company shall negotiate in good faith with the calendar year ending December 31Sustainability Coordinator and the Administrative Agent to amend the Sustainability Target, 2021the Sustainability Threshold, the Sustainability Table and this Section 2.13 and any related schedules, exhibits or definitions referred to herein or therein in order to preserve the original intent of this Section. In such a scenario, the Company will then cease to refer to the KPI Metric, Sustainability Target and Sustainability Threshold in the Pricing Certificate for such period until amended in accordance herewith. (h) To the extent the Sustainability Coordinator ceases to be the Administrative Agent or a Lender (or, an Affiliate of the Administrative Agent or a Lender), the Company shall use commercially reasonable efforts to seek to appoint another Person that is the Administrative Agent or a Lender (or an Affiliate of the Administrative Agent or a Lender) to fulfill the role of the Sustainability Coordinator. Once appointed by the Company, such Person shall be the Sustainability Coordinator hereunder. (i) The Company shall deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar fiscal year may be by no later than February 27th of the following fiscal year (commencing with delivery in 2024 for the fiscal year ended in 2023); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may Company shall have the option to elect not to deliver a Pricing Certificate, Certificate for such fiscal year. Any such election shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Company to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)2.13(c) above. (hj) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers Company shall deliver to the Sustainability Coordinator and the Administrative Agent a customary report from a KPI Metrics Auditor attesting to the Percentage of Women in Leadership Positions for fiscal year ended in 2022, in form and substance reasonably satisfactory to the Lenders Sustainability Coordinator (the “Historical Report”) by no later than February 27th, 2023. The failure of the Company to deliver the Historical Report shall not constitute a certificate that (iDefault or Event of Default hereunder, but shall subject the Company to a Threshold Adjustment described in Section 2.13(c) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdabove.

Appears in 1 contract

Samples: Term Loan Agreement (Jacobs Solutions Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to (together with the Administrative Agent applicable Sustainability Metric Auditor Report) in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day first day of the first month immediately following the receipt by Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.08(f) based upon the KPI Metrics 1 (Renewable Energy Procurement) and KPI 2 (Green Certification) for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery or delivery of an incomplete Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.08(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the Applicable Percentage for Revolving Margins with respect to Term SOFR Loans, Daily SOFR Loans incurred by DEI and Base Rate Loans will never be reduced or increased by more than 0.050.02% and that in the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, aggregate pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several reference to the KPI Metrics Metric Targets in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the KPI 1 (Renewable Energy Procurement) or the KPI 2 (Green Certification) for the applicable Reference Year, within the period set forth in this Section 1.71.08(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.08(f). (d) If (i)(A) a Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment KPI 1 (Renewable Energy Procurement) or the KPI Metrics 2 (Green Certification) as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders Banks agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment the KPI 1 (Renewable Energy Procurement) or the KPI Metrics 2 (Green Certification) would have resulted in an increase in no adjustment or a lesser adjustment, as applicable, to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersBanks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent or any LenderBank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware shall deliver written notice of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the to Administrative Agent of within ten (10) Business Days after obtaining knowledge thereof, which written notice from the Borrowers of shall describe such Pricing Certificate Inaccuracy in reasonable detail (and which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit description shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) shared with each Bank). It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.08(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Default Rate pursuant to Section 3.1(b2.07(b) prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the none of Administrative Agent nor or the Co-Sustainability Structuring Agent Agents shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent Agents may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 180 days following the end of each calendar year (commencing with the calendar year ending December 31, 20212023), Borrower may deliver a Pricing Certificate to Administrative Agent and each of the Sustainability Agents (and Administrative Agent shall promptly provide a copy to each Bank) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year the Borrowers Reference Year Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120180-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c1.08(c)). (hg) In the event Borrowers or any of their Subsidiaries acquire or divest Following a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such material acquisition or divestiture Disposition, Borrower, in consultation with the Sustainability Structuring Agents, may propose changes to the KPI 1 Targets and/or KPI 2 Targets by delivering a revised Sustainability Table to Administrative Agent. Any such that revised Sustainability Table shall become effective at 5:00 p.m. on the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral fifth (5th) Business Day after Administrative Agent shall have posted such proposed Sustainability Table to all Banks unless, prior to such acquisition or disposition in a manner and methodology that are time, Banks comprising the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver Required Banks have delivered to the Administrative Agent and the Lenders a certificate written notice that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected Banks object to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdrevised Sustainability Table.

Appears in 1 contract

Samples: Credit Agreement (JBG SMITH Properties)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar fiscal year (commencing with the date the Administrative Agent’s receipt thereoffiscal year ending October 2, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2022, (i) the Applicable Interest Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 2.18 (but in no event shall any adjustment result in the Applicable Interest Rate Percentage being less than 0.00%) and (ii) the Applicable Commitment Fee Percentage for and the Facility Ticking Fee for Commitments under the DEI Sublimit Percentage shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability times described in this Section 2.18 (but in no event shall any adjustment result in the Applicable Commitment Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cPercentage or the Ticking Fee Percentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.18(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment, as applicable, therein (such day, the “Sustainability Pricing Adjustment Date”) and (B) each change in the Applicable Interest Rate Percentage, the Applicable Commitment Fee Percentage and the Ticking Fee Percentage resulting from a Pricing Certificate and the Sustainability Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.18(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearfiscal year of the Company. It is further understood and agreed that any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Interest Rate Percentage, Applicable Commitment Fee Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Ticking Fee AdjustmentPercentage, respectively, on any resulting therefrom shall be reset to “zero” following the conclusion of such Applicable Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Company within the period set forth in this Section 1.72.18(i), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% (such positive rates, collectively, the “Threshold Adjustment”) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.18(i) and continuing until the day immediately Company delivers a Pricing Certificate to the Administrative Agent. In the event no Pricing Certificate is delivered for a fiscal year by June 30th of such year, the Sustainability Rate Adjustment and Sustainability Fee Adjustment with respect to such fiscal year shall be the Threshold Adjustment. In the event no Sustainability Report is delivered for the fiscal year ended October 3, 2021 prior to delivery of the next Pricing Certificate for the fiscal year ending October 2, 2022, the Sustainability Pricing Rate Adjustment Dateand Sustainability Fee Adjustment with respect to such fiscal year shall be the Threshold Adjustment. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for Interest Rate Percentage, the Revolving Loans incurred by DEI Applicable Commitment Fee Percentage and the Facility Ticking Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, was a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for Interest Rate Percentage, the Revolving Loans incurred by DEI Applicable Commitment Fee Percentage and the Facility Ticking Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for Interest Rate Percentage, the Revolving Loans incurred by DEI Applicable Commitment Fee Percentage and the Facility Ticking Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed to be not materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 2.18(d), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, Default so long as the Borrowers comply Company complies with the terms of this Section 1.7 2.18(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code of the United States (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph subsection (d) shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d), (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Certificate. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). (g) As soon as available and in To the extent any event within 120 days following occurs (which would include, without limitation, a material disposition or material acquisition) which, in the end opinion of each calendar year the Company and the Sustainability Coordinator, acting reasonably, means that one or more of the Sustainability Targets or Sustainability Thresholds set forth in the Sustainability Table is no longer applicable given changes in the Company’s structure, then the Company and the Sustainability Coordinator will report to the Lenders that such Sustainability Targets and Sustainability Thresholds will no longer apply. In such a scenario, the Company will then cease to refer to the applicable KPI Metrics, Sustainability Targets and Sustainability Thresholders in the Pricing Certificate for such period. (commencing with h) To the calendar year ending December 31, 2021extent the Sustainability Coordinator ceases to be a Lender (or an Affiliate of a Lender), the Company shall use commercially reasonable efforts to seek to appoint another Person that is a Lender (or an Affiliate of a Lender) to fulfill the role of the Sustainability Coordinator. (i) The Company shall use commercially reasonable efforts to deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar fiscal year may be (commencing with delivery in 2023 for the fiscal year ended in 2022) within sixty (60) days of the release of the annual Sustainability Report (but in no event earlier than February 1st of any fiscal year); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year unless the Borrowers may elect Company elects not to deliver a Pricing CertificateCertificate for such fiscal year, such Pricing Certificate shall be delivered no later than June 30th of any fiscal year. Any such election shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Company to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)2.18(c) above. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Tetra Tech Inc)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations Each of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined pursuant to Section 1.7(ceffective on the Sustainability Adjustment Date and (ii) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Margin and the Facility Fee Rate resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one the Sustainability Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered only once (as to any given Key Performance Indicator) in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred Margin will never be reduced by DEI more than [Redacted] or increased by more than [Redacted] and the Facility Fee Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%[Redacted], in each case pursuant to the Sustainability Margin Adjustment and or the Sustainability Facility Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year (the “Maximum Adjustment”). For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin due to a Sustainability Margin Adjustment or such any adjustment to the Facility Fee by reason of meeting one or several KPI Metrics Rate due to a Sustainability Facility Fee Adjustment in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood If the Company fails to provide the Lead Sustainability Structuring Agent and agreed that if no such the Administrative Agent with the Sustainability Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day or one or more of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported for any calendar year within the timeframe indicated in a Pricing Certificate (any such material inaccuracySection 6.26.2, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description Applicable Margin shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred increased by DEI [Redacted] and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers Rate shall be obligated to pay to the Administrative Agent increased by [Redacted] for the account of the each applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order Key Performance Indicator for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, which a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have KPI Metric has not been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable)submitted, commencing on the Sustainability Adjustment Date and continuing until five Business Day Days following receipt by the Administrative Agent of date on which the Company submits another Sustainability Pricing Certificate for such noticeKey Performance Indicator (or if no such Sustainability Pricing Certificate is provided, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustmentsubsequent calendar year); provided, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It that it is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; providedthe Applicable Margin and the Facility Fee Rate, thatas applicable, will never be increased by more than the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demandMaximum Adjustment. (fd) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Agents shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Adjustment or Sustainability Fee Applicable Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any KPI Metrics Report or any Sustainability Pricing Certificate (and the Administrative Lead Sustainability Structuring Agent and the Co-Sustainability Structuring Administrative Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (he) In the event Borrowers or of a Regulatory Change in relation to any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWKey Performance Indicator, the Renewable Energy Generation Capacity Percentage Target Company and the Renewable Energy Generation Capacity Percentage Threshold Lead Sustainability Structuring Agent shall be adjusted negotiate in good faith, by no later than 60 days following the effective date of such Regulatory Change any necessary amendment, modification or other supplement to account for Schedule 6.2 (Sustainability Performance Thresholds) (and /or any component definitions thereof) solely to reasonably accommodate the effect of such acquisition Regulatory Change on the Sustainability Performance Thresholds. Such amendment, modification or divestiture such that other supplement, shall require the Renewable Energy Generation Capacity Percentage Target consent and approval of the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner Company, the Lead Sustainability Structuring Agent and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if will take effect so long as Lenders constituting Required Lenders have do not objected object to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold changes within 5 five Business Days after receiving written notice of such deliveryproposed amendment, then Exhibit 1.7-1 modification or other supplement. If the Company, the Lead Sustainability Structuring Agent and the Administrative Agent do not agree to any such amendment, modification or supplement following the 60 day period, then, upon the written agreement among the Company, the Lead Sustainability Structuring Agent and the Administrative Agent, which will take effect so long as Lenders constituting Required Lenders do not object to such agreement within five Business Days after the Lenders’ receipt of written notice of such proposed agreement, the Sustainability Applicable Rate Adjustment shall cease to apply for the relevant Key Performance Indicator and, notwithstanding anything to the contrary herein, for all purposes hereunder, the Sustainability Applicable Rate Adjustment for such Key Performance Indicator shall be deemed amended to reflect be zero. In the case such Key Performance Indicator no longer applies, (i) the Company will then cease to refer to the applicable Key Performance Indicator in the Sustainability Pricing Certificate, (ii) the Maximum Adjustment shall be automatically updated to exclude any adjustments for such Key Performance Indicator and (iii) the Bonus Sustainability Margin Adjustment shall be automatically adjusted Renewable Energy Generation Capacity Percentage Target to exclude any performance requirement with respect to such Key Performance Indicator; provided that if no Key Performance Indicator applies, notwithstanding anything to the contrary herein and Renewable Energy Generation Capacity Percentage Thresholdfor all purposes hereunder the Bonus Sustainability Margin Adjustment shall be deemed to be zero.

Appears in 1 contract

Samples: Revolving Credit Agreement (Ford Motor Co)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar fiscal year (commencing with the date the Administrative Agent’s receipt thereoffiscal year ending September 30, each a “Pricing Certificate Date”2023), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Interest Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 2.19 (but in no event shall any adjustment result in the Applicable Interest Rate Percentage being less than 0.00%) and (ii) the Applicable Commitment Fee Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability times described in this Section 2.19 (but in no event shall any adjustment result in the Applicable Commitment Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cPercentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.19(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment, as applicable, therein (such day, the “Sustainability Pricing Adjustment Date”) and (B) each change in the Applicable Interest Rate Percentage and the Applicable Commitment Fee Percentage resulting from a Pricing Certificate, and the Sustainability Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearrelated thereto, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.19(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). Notwithstanding the foregoing or anything to the contrary herein, in the event that a Pricing Certificate has been delivered, and the Company has not delivered the Historical Report, the Sustainability Rate Adjustment and the Sustainability Fee Adjustment with respect to such fiscal year shall be the Threshold Adjustment. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearfiscal year of the Company. It is further understood and agreed that any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Interest Rate Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee AdjustmentPercentage, respectively, on any resulting therefrom shall be reset to “zero” following the conclusion of such Applicable Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year or Historical Report is delivered by DEI the Company within the period periods set forth in this Section 1.7Sections 2.19(i) or (j), respectively, the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% (such positive rates, collectively, the “Threshold Adjustment”) commencing on the last day such Pricing Certificate or Historical Report could have been delivered pursuant to the terms of such period Sections 2.19(i) or (j), respectively, and continuing until the day immediately prior Company delivers such certificate or report to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each other Lender and the Borrowers)Company) and, in the case of such Lender, the Required Lenders agree in good faith that such material inaccuracy has occurred, or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower Loan Party under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)of the United States, automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, was a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If the Company or a Borrower Lender becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall not be deemed to be materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 2.19(d), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time that such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, Default so long as the Borrowers comply Company complies with the terms of this Section 1.7 2.19(d) with respect to any such Pricing Certificate InaccuracyInaccuracy that would have resulted in an increase in the Applicable Interest Rate Percentage and the Applicable Commitment Fee Percentage for any period. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower Loan Party under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)of the United States, (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph subsection (d) shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d), (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. If the event the Company fails to comply with Section 2.19(d) or (e), the Lenders’ sole recourse with respect thereto shall be the True-Up Amount. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the or Historical Report. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). Each party hereto hereby further agrees that neither the Administrative Agent nor the Sustainability Coordinator make any assurances as to (i) whether this Agreement meets any Borrower or Lender criteria or expectations with regard to sustainability performance, or (ii) whether the characteristics of the relevant sustainability performance targets and/or key performance indicators included in the Agreement, including any sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-linked credit facilities. (g) As soon as available and in To the extent any event within 120 days following occurs (which would include, without limitation, a material disposition or material acquisition) which, in the end opinion of each calendar year the Company and the Sustainability Coordinator, acting reasonably, means that the Sustainability Target or Sustainability Threshold set forth in the Sustainability Table is no longer applicable given changes in the Company’s structure, then (commencing i) the Company and the Sustainability Coordinator will report to the Lenders that the Sustainability Target and Sustainability Threshold will no longer apply and (ii) the Borrower shall negotiate in good faith with the calendar year ending December 31Sustainability Coordinator and the Administrative Agent to amend the Sustainability Target, 2021the Sustainability Threshold, the Sustainability Table and this Section 2.19 and any related schedules, exhibits or definitions referred to herein or therein in order to preserve the original intent of this Section. In such a scenario, the Company will then cease to refer to the KPI Metric, Sustainability Target and Sustainability Threshold in the Pricing Certificate for such period until amended in accordance herewith. (h) To the extent the Sustainability Coordinator ceases to be the Administrative Agent or a Lender (or, an Affiliate of the Administrative Agent or a Lender), the Company shall use commercially reasonable efforts to seek to appoint another Person that is the Administrative Agent or a Lender (or an Affiliate of the Administrative Agent or a Lender) to fulfill the role of the Sustainability Coordinator. Once appointed by the Company, such Person shall be the Sustainability Coordinator hereunder. (i) The Company shall deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar fiscal year may be by no later than February 27th of the following fiscal year (commencing with delivery in 2024 for the fiscal year ended in 2023); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may Company shall have the option to elect not to deliver a Pricing Certificate, Certificate for such fiscal year. Any such election shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Company to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)2.19(c) above. (hj) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers Company shall deliver to the Sustainability Coordinator and the Administrative Agent a customary report from a KPI Metrics Auditor attesting to the Percentage of Women in Leadership Positions for fiscal year ended in 2022, in form and substance reasonably satisfactory to the Sustainability Coordinator (the “Historical Report”) by no later than February 27th, 2023. The failure of the Company to deliver the Historical Report shall not constitute a Default or Event of Default hereunder, but shall subject the Company to a Threshold Adjustment described in Section 2.19(c) above. (k) The Company, in consultation with the Sustainability Coordinator and upon the consent of the Administrative Agent and the Lenders a certificate Required Lenders, shall have the option, in its discretion, to amend this Agreement and any applicable Exhibits attached hereto to introduce an additional sustainability metric and to incorporate such other conforming changes as determined by the Company and Sustainability Coordinator (the “KPI Amendment”); provided that (i) calculates the KPI Amendment shall not result in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amountsan increase or decrease in the aggregate of the total Sustainability Fee Adjustment or Sustainability Rate Adjustment percentages; provided further, andthat the KPI Amendment option shall expire on the date that is two years from the Closing Date, if Lenders constituting Required Lenders have not objected or upon the request of the Company prior to such adjusted Renewable Energy Generation Capacity Percentage Target date, such later date as requested by the Company and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days consented to by the Administrative Agent and the Required Lenders. The provisions of such deliverythis Section 2.19(k) shall supersede any provisions to the contrary in Section 10.01, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdor elsewhere in this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Jacobs Solutions Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Parent provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar fiscal year (commencing with the date the Administrative Agent’s receipt thereoffiscal year ending December 31, each a “Pricing Certificate Date”2023), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Interest Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 2.21 (but in no event shall any adjustment result in the Applicable Interest Rate Percentage being less than 0.00%) and (ii) the Applicable Commitment Fee Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability times described in this Section 2.21 (but in no event shall any adjustment result in the Applicable Commitment Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cPercentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.21(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each , and (B) each change in the Applicable Percentages on any Interest Rate Percentage and the Applicable Commitment Fee Percentage resulting from a Pricing Certificate, and the Sustainability Pricing Rate Adjustment Date and the Sustainability Fee Adjustment related thereto, shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.21(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). Notwithstanding the foregoing, to the extent an External Impacting Event occurs after the First Amendment Effective Date, there shall be no subsequent adjustment to the Applicable Interest Rate Percentage or the Applicable Commitment Fee Percentage resulting from the Resource Solutions Amount KPI Metric until the Resource Solutions Amount, Resource Solutions Threshold, Resource Solutions Target and/or the Sustainability Table with respect to the Resource Solutions Amount (or relevant provisions with respect thereto) then in effect are adjusted in accordance with Section 2.21(g) or (j) below. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearfiscal year of the Parent. It is further understood and agreed that that, unless otherwise agreed pursuant to Section 2.21(g) or (j) below, any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Interest Rate Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee AdjustmentPercentage, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment with respect to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several more KPI Metrics in any calendar fiscal year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Each applicable Sustainability Rate Adjustment or Sustainability Fee Adjustment shall only apply until the conclusion of such Applicable Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Parent within the period set forth in this Section 1.72.21(i), the Sustainability Margin Rate Adjustment will be positive 0.050.040% and the Sustainability Fee Adjustment will be positive 0.010.010% (such positive rates, collectively, the “Sustainability Threshold Adjustment”) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.21(i) and continuing until the day immediately prior Parent delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Parent or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each other Lender and the BorrowersParent), or (B) the Borrowers Parent and the Required Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable.Administrative (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, Default so long as the Borrowers comply Parent complies with the terms of Section 2.21(d) and this Section 1.7 2.21(e) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)of the United States, (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph subsection (d) shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d), (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-any Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Parent of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Certificate. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such . Each party hereto hereby further agrees that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to neither the Administrative Agent and nor the Lenders a certificate that Sustainability Coordinators make any assurances as to (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target whether this Agreement meets any Borrower or Lender criteria or expectations with regard to environmental impact and Renewable Energy Generation Capacity Percentage Threshold and sustainability performance, or (ii) restates Exhibit 1.7whether the characteristics of the relevant sustainability performance targets and/or key performance indicators included in the Agreement, including any environmental and sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdlinked credit facilities.

Appears in 1 contract

Samples: Credit Agreement (Casella Waste Systems Inc)

Sustainability Adjustments. (a) DEI may deliver a Pricing Subject to paragraph (i) below, the Applicable Margin shall be reduced by: (i) [***] for each Sustainability Performance Target (as detailed in the Sustainability Benchmark) that has been achieved; and (ii) (in relation to Sustainability Performance Target 4 and Sustainability Performance Target 5 for 2025 only and provided that such applicable Sustainability Performance Target has not been achieved) [***] for each Sustainability Progress Target that has been achieved, in each case, as demonstrated by the most recently delivered Sustainability Certificate (the "Sustainability Discount"). (b) Subject to paragraph (i) below, the Administrative Agent in respect Applicable Margin shall be increased by [***] for each Sustainability Performance Target for which the penalty level has been reached as demonstrated by the most recently delivered Sustainability Certificate (the "Sustainability Premium"). (c) The Applicable Margin shall be reset (such that it is not subject to any Sustainability Discount or Sustainability Premium) on: (i) if the most recent Sustainability Certificate has been delivered by the relevant Sustainability Certificate Due Date, the date falling 12 months from the date of delivery of the most recently ended calendar year on any date prior to recent Sustainability Certificate; or (ii) if the date that is 120 days following most recent Sustainability Certificate has not been delivered by the last day of such calendar year relevant Sustainability Certificate Due Date, the subsequent Sustainability Certificate Due Date. (d) In the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, event of: (i) a failure by the Applicable Percentage for Borrower to deliver a Sustainability Certificate by the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the relevant Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and Due Date; or (ii) the Applicable Percentage for Borrower delivering a Sustainability Certificate which is or proves to have been incorrect or inaccurate in any respect, then, from the Facility Fee for Commitments under relevant Sustainability Certificate Due Date (in the DEI Sublimit shall be increased case of sub-paragraph (i) above) or decreased the date on which the incorrect or inaccurate Sustainability Certificate was delivered (or neither increased nor decreased), as applicable, pursuant to in the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect case of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, sub-paragraph (ii) above): (A) if a Pricing Certificate is so delivered for any calendar year, no Sustainability Discount will be applied to the Applicable Margin; and (B) the maximum Sustainability Margin Adjustment and the Sustainability Fee Adjustment Premium shall be determined as of applied to the fifth Applicable Margin, (iii) up until the Business Day following the Pricing date on which the Agent receives the applicable Sustainability Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth (in the KPI Metrics case of sub-paragraph (i) above) or a corrected Sustainability Certificate delivered (in the case of sub-paragraph (ii) above) at which point the Applicable Margin shall be reset in accordance with such Pricing the information contained in that Sustainability Certificate and (in the calculations case of sub-paragraph (i) above) or that corrected Sustainability Certificate (in the case of sub-paragraph (ii) above). (e) At no point shall the Applicable Margin be: (i) reduced by more than [***] as a result of the Sustainability Margin Adjustment and Discount; or (ii) increased by more than [***] as a result of the Sustainability Fee Adjustment Premium. (f) Subject to paragraph (d) above, any change in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Applicable Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) this Clause 2 shall become effective as of on and from the first Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Agent receives the most recent Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in No Sustainability Discount or Sustainability Premium shall apply at any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or time an Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment has occurred and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c)is continuing. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted Subject to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that paragraph (i) calculates below, for the avoidance of doubt if any Sustainability Certificate does not certify the score of one or more of the Sustainability Performance Targets, or Sustainability Progress Targets, or does not certify or provide any required third-party verification for any relevant Sustainability Performance Target, or Sustainability Progress Targets, the rest of the information in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage that Sustainability Certificate will still be considered to be valid. (i) If any Sustainability Certificate delivered by the Borrower: (i) does not certify the score of any Sustainability Performance Target and Renewable Energy Generation Capacity Percentage Threshold and and/or Sustainability Progress Target (where applicable); or (ii) restates Exhibit 1.7does not certify or provide any required third-1 with such adjusted amountsparty verification for any relevant Sustainability Performance Target and/or Sustainability Progress Targets (where applicable), and, if Lenders constituting Required Lenders have not objected then: (iii) no Sustainability Discount will be applied to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days the Applicable Margin in respect of such delivery, then Exhibit 1.7-1 Sustainability Performance Target and/or Sustainability Progress Target (where applicable); and (iv) the maximum Sustainability Premium shall be deemed amended applied to reflect the Applicable Margin in respect of such adjusted Renewable Energy Generation Capacity Percentage Target Sustainability Performance Target. (j) Subject to paragraph (d) above, a Sustainability Discount of [***] shall be applied to the Applicable Margin during the period beginning on the date of this Agreement and Renewable Energy Generation Capacity Percentage Thresholdending on (and including) the date the Agent receives a Sustainability Certificate in 2024.

Appears in 1 contract

Samples: Revolving Facility Agreement (Bunge Global SA)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for Margin and the Revolving Loans incurred by DEI Letter of Credit Fee Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the applicable Facility Fee for Commitments under Rate set forth in the DEI Sublimit Pricing Schedule shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.02(d) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin, the Facility Fee Rate and the Letter of Credit Fee Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 6.02(d)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that that, subject to the second to last paragraph of Section 10.01, the Applicable Percentage for Revolving Loans incurred by DEI Margin and Letter of Credit Fee Rate will never be reduced or increased by more than 0.05% 4.0 basis points (such eight basis point spread, the “Eight Basis Point Sustainability Margin Adjustment Spread”) pursuant to the Sustainability Margin Adjustment and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit Rate will never be reduced or increased by more than 0.01%1.0 basis point (such two basis point spread, the “Two Basis Point Sustainability Fee Adjustment Spread”) pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datefiscal year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Margin, Facility Fee Rate or Letter of Credit Fee Rate by reason of meeting one or several both KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment DateCertificate is delivered or required to be delivered pursuant to Section 6.02(d). (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Company by the time required pursuant to Section 1.76.02(d), (i) the Sustainability Fee Adjustment will be positive 1.0 basis points and (ii) the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% 4.0 basis points, commencing on the last day of such period Pricing Certificate was required to have been delivered and continuing until the day immediately prior Company delivers a Pricing Certificate for the applicable fiscal year to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Company or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersCompany), or (B) the Borrowers Company and the Lenders Banks agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and Margin, the Facility Fee for Commitments under the DEI Sublimit Rate or Letter of Credit Fee Rate for any applicable period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Banks promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent or any LenderBank), but in any event within 10 Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and Margin, the Facility Fee for Commitments under Rate and the DEI Sublimit Letter of Credit Fee Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and Margin, the Facility Fee for Commitments under Rate and the DEI Sublimit Letter of Credit Fee Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Pricing Certificate Inaccuracy with respect to any applicable period shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Company complied with the terms of this Section 1.7 2.17(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower the Company under the Bankruptcy Code (or any comparable event under non-non U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Adjustment or any Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Five Year Credit Agreement (General Mills Inc)

Sustainability Adjustments. (a) DEI As soon as available and in any event within 150 days following the end of each calendar year (commencing with the calendar year ending December 31, 2023), the Borrower shall deliver to the Administrative Agent, the Sustainability Structuring Agent and the Lenders a Pricing Certificate for the most recently ended calendar year; provided, that, the Borrower may elect not to deliver a Pricing Certificate for any such calendar year, and such election shall not constitute a Default or Event of Default (but, for the avoidance of doubt, such failure to so deliver a Pricing Certificate by the end of such 150-day period shall result in the Sustainability Rate Adjustment and the Sustainability Facility Fee Adjustment being applied as set forth in Section 2.19.(d)). (b) Effective as of the fifth Business Day following receipt by the Administrative Agent in respect of a Pricing Certificate for the most recently ended calendar year on any date prior delivered pursuant to Section 2.19.(a) (such day, the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a Sustainability Pricing Certificate Adjustment Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Facility Fee Adjustment Adjustment, in each case, as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect (for the avoidance of a calendar yeardoubt, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”therein). Each change in the Applicable Percentages on any Sustainability Margin and Applicable Facility Fee resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-delivery of a Pricing Certificate, zero the last day such Pricing CertificatesCertificate could have been delivered pursuant to the terms of Section 2.19.(a)). (c) For the avoidance of doubt, only one Pricing Certificate may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.050.04% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, % during any calendar year pursuant to the a Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Applicable Facility Fee by reason of meeting one or several the KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any , and each applicable Sustainability Pricing Rate Adjustment Date and the Sustainability Facility Fee Adjustment shall only apply for during the period until specified in the date immediately preceding the next Sustainability Pricing Adjustment Datelast sentence of Section 2.19.(b). (cd) It is hereby understood and agreed that if If no such Pricing Certificate with respect to a calendar year is delivered by DEI within Borrower pursuant to Section 2.19.(a) (or if any Pricing Certificate shall be incomplete and fail to satisfy the period requirements set forth in this Section 1.7the definition of “Pricing Certificate” as determined by the Administrative Agent in its reasonable discretion), then (i) for the period specified in clause (b) of the definitions of KPI Applicable Margin Adjustment Amount, the Sustainability Rate Adjustment shall be 0.00% commencing on the last day such Pricing Certificate could have been delivered pursuant to Section 2.19.(a) and continuing until Borrower delivers a Pricing Certificate pursuant to such Section for the applicable calendar year and (ii) for any other period specified in clause (c) of the definition of KPI Applicable Margin Adjustment Amount or in clause (b) of the definition of KPI Facility Fee Adjustment Amount, as applicable, the Sustainability Rate Adjustment will be positive 0.050.04% and the Sustainability Facility Fee Adjustment will be positive 0.01% %, in each case commencing on the last day of such period Pricing Certificate could have been delivered pursuant to Section 2.19.(a) and continuing until Borrower delivers a Pricing Certificate pursuant to such Section for the day immediately prior applicable calendar year. Further, on and at any time after the occurrence of a Declassification Event the Administrative Agent may, and shall if so directed by the Requisite Lenders, by notice to the next Borrower declassify the Loans as “sustainability-linked”, and with effect on and from the Declassification Date, (A) any Sustainability Pricing Rate Adjustment or Sustainability Facility Fee Adjustment shall cease to apply, (B) no Sustainability Rate Adjustment or Sustainability Facility Fee Adjustment shall apply to any future period pursuant to this Section 2.19. and (C) no Loans may be re-classified as “sustainability-linked”) on or after the Declassification Date. (de) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, and such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent and Borrower describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers)detail, or (B) the Borrowers Borrower becomes aware of a Pricing Certificate Inaccuracy and Borrower and the Lenders Administrative Agent shall mutually agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Applicable Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers then Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Lenders promptly on demand by the Administrative Agent (or, after following the occurrence of an actual a Default or deemed entry Event of an order for relief with respect to any Borrower under the Bankruptcy Code (Default specified in Section 10.1.(e) or any comparable event under non-U.S. debtor relief lawsSection 10.1.(f)), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have Xxxxxxxx has received written notice ofof (in the case of clause (e)(i)(A) above), or have has agreed in writing that there waswas (in the case of clause (e)(i)(B) above), a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections Notwithstanding anything to the calculations of the Sustainability Margin Adjustmentcontrary herein, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (ex) It is understood and agreed that any a Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply provided that Borrower complies with the terms of this Section 1.7 2.19. and Section 8.4.(r) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, Inaccuracy and (y) unless such amounts shall be due upon the occurrence of an actual a Default or deemed entry Event of an order for relief with respect to a Borrower under the Bankruptcy Code (Default specified in Section 10.1.(e) or any comparable event under non-U.S. debtor relief lawsSection 10.1.(f), (aI) any additional amounts required to be paid pursuant the immediate preceding paragraph to this Section 2.19.(e) shall not be due and payable until the date that is 10 Business Days after a earlier to occur of (1) written demand is made for such payment by the Administrative Agent in accordance with this Section or (2) 10 Business Days after Borrower has received written notice of (in the case of clause (e)(i)(A) above), or has agreed in writing that there was (in the case of clause (e)(i)(B) above), a Pricing Certificate Inaccuracy (such paragraphdate, the “Certificate Inaccuracy Payment Date”), (bII) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (cIII) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Post-Default Rate prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative no Titled Agent nor the Co-Sustainability Structuring Agent or any Lender shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Rate Adjustment or Sustainability Facility Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Regency Centers Lp)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations Each of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined pursuant to Section 1.7(ceffective on the Sustainability Adjustment Date and (ii) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Margin and the Facility Fee Rate resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one the Sustainability Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered only once (as to any given Key Performance Indicator) in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred Margin will never be reduced by DEI more than [Redacted] or increased by more than [Redacted] and the Facility Fee Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%[Redacted], in each case pursuant to the Sustainability Margin Adjustment and or the Sustainability Facility Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year (the “Maximum Adjustment”). For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin due to a Sustainability Margin Adjustment or such any adjustment to the Facility Fee by reason of meeting one or several KPI Metrics Rate due to a Sustainability Facility Fee Adjustment in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood If the Company fails to provide the Lead Sustainability Structuring Agent and agreed that if no such the Administrative Agent with the Sustainability Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day or one or more of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported for any calendar year within the timeframe indicated in a Pricing Certificate (any such material inaccuracySection 6.2, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description Applicable Margin shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred increased by DEI [Redacted] and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers Rate shall be obligated to pay to the Administrative Agent increased by [Redacted] for the account of the each applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order Key Performance Indicator for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, which a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have KPI Metric has not been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable)submitted, commencing on the Sustainability Adjustment Date and continuing until five Business Day Days following receipt by the Administrative Agent of date on which the Company submits another Sustainability Pricing Certificate for such noticeKey Performance Indicator (or if no such Sustainability Pricing Certificate is provided, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustmentsubsequent calendar year); provided, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It that it is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; providedthe Applicable Margin and the Facility Fee Rate, thatas applicable, will never be increased by more than the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demandMaximum Adjustment. (fd) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Agents shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Adjustment or Sustainability Fee Applicable Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any KPI Metrics Report or any Sustainability Pricing Certificate (and the Administrative Lead Sustainability Structuring Agent and the Co-Sustainability Structuring Administrative Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (he) In the event Borrowers or of a Regulatory Change in relation to any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWKey Performance Indicator, the Renewable Energy Generation Capacity Percentage Target Company and the Renewable Energy Generation Capacity Percentage Threshold Lead Sustainability Structuring Agent shall be adjusted to account for such acquisition or divestiture such that negotiate in good faith, by no later than 60 days following the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days effective date of such deliveryRegulatory Change any necessary amendment, then Exhibit 1.7-1 shall be deemed amended modification or other supplement to reflect Schedule 6.2 (Sustainability Performance Thresholds) (and /or any component definitions thereof) solely to reasonably accommodate the effect of such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.Regulatory Change on the Sustainability

Appears in 1 contract

Samples: 364 Day Revolving Credit Agreement (Ford Motor Co)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofended December 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2024, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreasednot adjusted), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreasednot adjusted), as applicable, pursuant to the Sustainability Facility Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined and applied as of the fifth Business Banking Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.08(f) based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment Adjustment, and the Sustainability Facility Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin and Facility Fee resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.08(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.050.04% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Fee by reason of meeting one or several the KPI Metrics Metric in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI Borrower with regard to a particular calendar year within the period set forth in this Section 1.71.08(f), the nothe Sustainability Margin Adjustment will be positive 0.05made to the Applicable Marginpositive 0.04% and the Sustainability Facility Fee Adjustment will be positive 0.01% commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 1.08(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable calendar year. (d) If (i)(A) a Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 Business Banking Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders Banksbecomes aware of a Pricing Certificate Inaccuracy and the Borrower and the Administrative Agent shall mutually agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) in either case, a proper calculation of the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Metric would have resulted in no adjustment toor an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Facility Fee for Commitments under the DEI Sublimit for any period, (x) commencing on the Borrowers fifth Banking Day following delivery of a corrected Sustainability Certificate to the Administrative Agent, the Applicable Margin and Facility Fee shall be adjusted to reflect such corrected calculations of the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment and (y) the Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersBanks or the applicable L/C IssuersFronting Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Bank or any LenderL/C IssuerFronting Bank), but in any event within 10 Business Banking Days after the Borrowers have Borrower has received written notice ofof (in the case of clause (d)(i)(A) above), or have has agreed in writing that there waswas (in the case of clause (d)(i)(B) above), a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics Metric would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI MetricsMetric, as applicable), commencing on the Business 10th Banking Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted (but only with respect to periods commencing after such 10th Banking Day) to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI MetricsMetric, as applicable. (e) , for all periods occurring no sooner than 10 Banking Days after receipt by the Administrative It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any letter of credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.08(d) and Section 6.09(17) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant to the immediate immediateimmediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphparagraph10 Banking Days after the Borrower has received written notice of (in the case of clause (d)(i)(A) above), or has agreed in writing that there was (in the case of clause (d)(i)(B) above), a Pricing Certificate Inaccuracy (such date, the “Certificate Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by Administrative Agent Agentthe Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand demandthe Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demanddemandthe Certificate Inaccuracy Payment Date. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have (x) any duty to ascertain, inquire into or otherwise independently verify any sustainability related information or any other information or materials provided by the Borrower and used in connection with the sustainability provisions of the credit facility described in this Agreement, including with respect to the applicable KPI Metrics nor (y) any responsibility for (or liability in respect of) the completeness or accuracy of such information. Each party hereto hereby agrees that neither the Administrative Agent nor the Sustainability Structuring Agent nor any Lead Arranger shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Facility Fee Adjustment or any Sustainability Fee Margin Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate or notice as to a Pricing Certificate Inaccuracy (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatecertificate or notice, without further inquiry). (gf) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 202120222024), Borrower mayshall deliver a Pricing Certificate to the Administrative Agent (and the Administrative Agent shall promptly provide a copy to each Bank) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7year; provided, that, for any calendar year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and the Sustainability Fee Adjustment being applied as set forth in Section 1.7(c1.08(c)). In the event (i) Borrower’s fiscal year is changed to a non-calendar year fiscal year or (ii) Borrower elects, in accordance with applicable rules, regulations or guidance of the SEC, to disclose its annual sustainability reporting with or following the filing of its quarterly report on Form 10-Q for the second quarter of its fiscal year, Borrower will be permitted to adjust the timing of delivery of the Pricing Certificate at its election to be coordinated with fiscal year and periodic reporting schedule. (g) If, after the date hereof, there occurs any Sustainability Recalculation Event, and either (i) the Borrower notifies the Administrative Agent in writing that the Borrower requests an amendment to any provision hereof to eliminate, accommodate or otherwise take into account the effect of such Sustainability Recalculation Event, or (ii) the Administrative Agent notifies the Borrower that the Required Banks request an amendment to any provision or provisions hereof for such purpose (it being understood and agreed that any such notice may be given before or after such Sustainability Recalculation Event has occurred), then (A) the Borrower and the Administrative Agent shall negotiate in good faith to amend the provisions hereof to eliminate, accommodate or otherwise take into account the effect of such Sustainability Recalculation Event for the period from and after the occurrence of such Sustainability Recalculation Event, and (B) the provisions of this Agreement shall be interpreted on the basis of the provisions in effect and applied immediately prior to such Sustainability Recalculation Event for a period of not more than 30 days following the date of any such notice (unless the provisions hereof shall have been amended in accordance herewith or such notice shall have been withdrawn). If, after 30 days following the date of any such notice, the consent of the Borrower, the Administrative Agent and the requisite Banks under Section 12.02 has not been obtained (provided that adjustments to the KPI Target, KPI Threshold, Standard for Sustainability Reporting and/or Sustainability Table in connection with a Sustainability Recalculation Event shall not be deemed to be an amendment described in clause (1) of Section 12.02), (x) on the one-year anniversary of the date a delivered Pricing Certificate was most recently delivered or due and not delivered, as applicable, the Applicable Margin shall be calculated without regard to this Section 1.08, which Section and related definitions shall have no further force or effect, and (y) thereafter, no party to this Agreement shall make any public or private representations or description of the credit facility described in this Agreement as a sustainability-linked loan. (h) The Borrower reserves the right to adjust the baseline set forth in the Sustainability Table, in consultation with the Sustainability Structuring Agent, in alignment with mandatory regulatory disclosure requirements and/or a new Science-Based Target (SBTi) aligned goal but the Sustainability Table shall maintain the 2.5% annual improvement for each year as the KPI Target and 1% annual improvement for each year as the KPI Threshold, in each case, from the 2022 baseline as so adjusted. In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWthat the baseline is so adjusted, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to Borrower, the Administrative Agent and the Lenders a certificate that (i) calculates Sustainability Structuring Agent shall amend the Sustainability Table in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target accordance with the foregoing sentence, and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected the Administrative Agent shall provide the amended Sustainability Table to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdthe Banks.

Appears in 1 contract

Samples: Revolving Credit Agreement (Vornado Realty Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.7(f) based upon the KPI Metrics Metric for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.7(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the LIBOR Applicable Percentage for Revolving Loans incurred by DEI Margin and the Base Rate Applicable Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, % pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several reference to the KPI Metrics Metric Target in any calendar year Reference Year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the KPI Metric for the applicable Reference Year, within the period set forth in this Section 1.71.7(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.7(f). (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics Metric would have resulted in an increase in no adjustment to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.7(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the default rate provided in pursuant to Section 3.1(b) 2.14 prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any no responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 90 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), the Borrower may deliver a Pricing Certificate to the Administrative Agent (and the Administrative Agent shall promptly provide a copy to each Lender) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 12090-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In ). Subject to the event Borrowers or any provisions of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWSection 1.7(b), the Renewable Energy Generation Capacity Percentage Target Borrower may, at its election exercisable by delivering written notice to the Administrative Agent, adjust the Reference Year and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that timing of delivery of the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition Pricing Certificate in a manner and methodology that are intended to maintain consistency with the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdforegoing.

Appears in 1 contract

Samples: Unsecured Revolving Credit Agreement (First Industrial Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to (commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofending December 31, each a “Pricing Certificate Date”2022), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage Margin for purposes of calculating interest on the Revolving Loans incurred by DEI and the Bank’s L/C Fee Rate payable under Section 2.16(f) shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 2.21 and the Sustainability Table (but in no event shall any adjustment result in the Applicable Margin being less than 0.00%) and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Facility Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the times described in this Section 2.21 and the Sustainability Table (but in no event shall any adjustment result in the Facility Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cRate being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment shall be determined effective as of the fifth Business Banking Day following receipt by the Administrative Agent and the Sustainability Structuring Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.09(13) based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and each change in the Applicable Percentages on any Margin and the Facility Fee Rate resulting from a Pricing Certificate and the Sustainability Pricing Rate Adjustment Date and the Sustainability Facility Fee Adjustment related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 6.09(13)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced any Sustainability Rate Adjustment or increased by more than 0.05% and that the Applicable Percentage for the Sustainability Facility Fee Adjustment made for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Applicable Sustainability Pricing Adjustment DatePeriod shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Margin resulting therefrom shall be reset to “zero” following the conclusion of such Applicable Sustainability Pricing Adjustment Period. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Sustainability Rate Adjustment and the Sustainability Facility Fee by reason of meeting one or several KPI Metrics in any calendar year Adjustment shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.76.09(13), the Sustainability Margin Rate Adjustment will be a positive 0.05amount equal to 0.02% and the Sustainability Facility Fee Adjustment will be positive 0.01amount equal to 0.005% (such positive amount, collectively, the “Sustainability Threshold Adjustment”) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 6.09(13) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Administrative Agent and the Sustainability Pricing Adjustment DateStructuring Agent for the applicable calendar year. (d) If (i)(A) a the Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment Adjustment, the KPI Metrics Report or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any LenderBank, such Lender Bank delivers, not later than 10 Business ten (10) Banking Days after obtaining knowledge thereof, a written notice to the Administrative Agent and the Sustainability Structuring Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower, the Administrative Agent and the Lenders Sustainability Structuring Agent agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Metric would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersBanks or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, automatically and without further action by the Administrative Agent Agent, any Bank or any LenderIssuing Bank), but in any event within 10 Business ten (10) Banking Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, was a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such periodperiod (such amount, the “True-Up Amount”). If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Metric would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent and the Sustainability Structuring Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment Adjustment, or the KPI MetricsMetric, as applicable), commencing on the Business fifth Banking Day following receipt by the Administrative Agent and the Sustainability Structuring Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment or and/or the KPI MetricsMetric, as applicable. Notwithstanding the foregoing or anything to the contrary herein, the parties agree that any such adjustment to reflect a decrease in the Applicable Margin and the Facility Fee Rate for any period shall only be effective on a prospective basis and shall not require any adjustments to amounts previously paid by the Borrower prior to the discovery of the Pricing Certificate Inaccuracy. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of the foregoing Section 2.21(d) and this Section 1.7 2.21(e) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business ten (10) Banking Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Banking Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 Business ten (10) Banking Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 Business ten (10) Banking Days after such a written demand. In the event the Borrower fails to comply with Section 2.21(d) or this Section 2.21(e), the Bank’s sole recourse with respect thereto shall be limited to the True-Up Amount. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-any Sustainability Structuring Agent (i) shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any KPI Metric, the Sustainability Margin Report, any Sustainability Facility Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation, including any KPI Metrics Report) set forth in any Pricing Certificate or (ii) makes any assurances whether this Agreement meets any criteria or expectations of the Borrower or any Bank or any other Person with regard to environmental or social impact and sustainability performance, or whether the credit facility evidenced by this Agreement, including the characteristics of the relevant sustainability metrics (including any environmental, social and sustainability criteria or any computation methodology) meet any industry standards for sustainability-linked credit facilities. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry), including when implementing any pricing adjustment. (g) As soon as available and in To the extent any event within 120 days following occurs after the end of each calendar year Closing Date (commencing with the calendar year ending December 31which would include, 2021)without limitation, a Pricing Certificate for material disposition or material acquisition) which, in the most recently-ended calendar year may be provided by DEI as opinion of the Borrower and the Sustainability Structuring Agent, acting reasonably, means that one or more of the GHG Emissions Reductions Targets or GHG Emissions Reductions Thresholds set forth in the Sustainability Table is no longer applicable given changes in the Borrower’s structure, then (i) the Borrower shall negotiate in good faith with the Sustainability Structuring Agent and the Administrative Agent to amend the GHG Emissions Reductions Targets or GHG Emissions Reductions Thresholds, the Sustainability Table and this Section 1.7; provided2.21 and any related schedules, thatexhibits or definitions referred to herein or therein in order to preserve the original intent of this Section in light of such event (such amendments to subject to the affirmative approval of the Required Banks) and (ii) if the Borrower, for any calendar year the Borrowers may elect not Administrative Agent, the Sustainability Structuring Agent and the Required Banks are unable to deliver a Pricing Certificateagree upon such an amendment, the Borrower and the Sustainability Structuring Agent will report to the Banks that such election shall not constitute a Default or Event of Default (but such failure GHG Emissions Reductions Targets and GHG Emissions Reductions Thresholds will no longer apply, in which case, the Borrower will then cease to so deliver a refer to the applicable KPI Metric, GHG Emissions Reductions Targets and GHG Emissions Reductions Thresholds in the Pricing Certificate and the Borrower will cease to refer to the loan facility evidenced by the end of this Agreement as a sustainability-linked loan facility for such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c)period. (h) In To the extent the Sustainability Structuring Agent ceases to be a Bank (or an Affiliate thereof), the Borrower shall use commercially reasonable efforts to seek to appoint another Person that is a Bank to fulfill the role as Sustainability Structuring Agent, subject to Section 10.08(b) (it being understood and agreed that the provisions of Section 10.08(b) shall supersede the provisions of this clause (h) in the event Borrowers or of any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdconflict).

Appears in 1 contract

Samples: Revolving Loan Agreement (Avalonbay Communities Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.7(f) based upon the KPI Metrics Metric for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.7(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the LIBOR Applicable Percentage for Revolving Loans incurred by DEI Margin and the Base Rate Applicable Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, % pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several reference to the KPI Metrics Metric Target in any calendar year Reference Year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the KPI Metric for the applicable Reference Year, within the period set forth in this Section 1.71.7(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.7(f). (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics Metric would have resulted in an increase in no adjustment to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent or Agent, any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.7(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the default rate provided in pursuant to Section 3.1(b) 2.14 prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any no responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 90 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), the Borrower may deliver a Pricing Certificate to the Administrative Agent (and the Administrative Agent shall promptly provide a copy to each Lender) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 12090-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In ). Subject to the event Borrowers or any provisions of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWSection 1.7(b), the Renewable Energy Generation Capacity Percentage Target Borrower may, at its election exercisable by delivering written notice to the Administrative Agent, adjust the Reference Year and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that timing of delivery of the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition Pricing Certificate in a manner and methodology that are intended to maintain consistency with the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdforegoing.

Appears in 1 contract

Samples: Unsecured Term Loan Agreement (First Industrial Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.7(f) based upon the KPI Metrics Metric for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.7(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that (i) the LIBORTerm SOFR Applicable Percentage for Revolving Loans incurred by DEI Margin, the Adjusted Daily Simple SOFR Applicable Margin and the Base Rate Applicable Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, % pursuant to the Sustainability Margin Adjustment during any calendar yeartwelve-month period and the Sustainability Fee Adjustment, respectively, on (ii) at no time shall any Sustainability Pricing Adjustment DateApplicable Margin be less than 0.0%. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several reference to the KPI Metrics Metric Target in any calendar year Reference Year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the KPI Metric for the applicable Reference Year, within the period set forth in this Section 1.71.7(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.7(f). (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics Metric would have resulted in an increase in no adjustment to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent or Agent, any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.7(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in default rateDefault Rate pursuant to Section 3.1(b) 2.14 prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any no responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 90 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), the Borrower may deliver a Pricing Certificate to the Administrative Agent (and the Administrative Agent shall promptly provide a copy to each Lender) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 12090-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In ). Subject to the event Borrowers or any provisions of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWSection 1.7(b), the Renewable Energy Generation Capacity Percentage Target Borrower may, at its election exercisable by delivering written notice to the Administrative Agent, adjust the Reference Year and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that timing of delivery of the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition Pricing Certificate in a manner and methodology that are intended to maintain consistency with the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdforegoing.

Appears in 1 contract

Samples: Unsecured Term Loan Agreement (First Industrial Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar yearFiscal Year, (i) the Applicable Percentage Rate (with respect to the Term SOFR Spread (including for purposes of the Revolving Loans incurred by DEI participation fee with respect to Letters of Credit) and the ABR Spread) shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth third Business Day 77 following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.04(j) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daycalculations, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each such change in the Applicable Percentages on any Sustainability Rate and the Commitment Fee Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 5.04(j). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearFiscal Year. It is further understood and agreed that the Applicable Percentage Rate (with respect to the Term SOFR Spread (including for Revolving Loans incurred by DEI purposes of the participation fee with respect to Letters of Credit) and the ABR Spread) will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate will never be reduced or increased by more than 0.01%, in each case pursuant to the Sustainability Margin Rate Adjustment and or the Sustainability Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment DateFiscal Year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Rate or such Facility Commitment Fee Rate by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.75.04(j), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 5.04(j) and continuing until the day immediately prior Company delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a the KPI Metrics Report attached to any applicable Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Bank, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, provided that the Borrowers comply Borrower complies with the terms of this Section 1.7 2.23(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-any Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in To the extent any event within 120 days occurs (which would include, without limitation, a material disposition or material acquisition) which, in the opinion of the Borrower and the Administrative Agent, acting reasonably, means that one or more of the KPI Metrics and/or applicable specified value in the Sustainability Table is no longer appropriate, then the Borrower and the Administrative Agent will notify the Lenders that the Borrower and the Administrative Agent have determined that such KPI Metric and/or applicable specified value in the Sustainability Table should no longer apply. In such scenario, unless, prior to 5:00 p.m. on the fifth Business Day following the end of each calendar year (commencing with date the calendar year ending December 31Administrative Agent so notifies the Lenders, 2021)the Lenders comprising the Required Lenders deliver to the Administrative Agent written notice that such Required Lenders object to such determination, a the Borrower will cease to refer to the applicable KPI Metric and/or applicable specified value in the Sustainability Table in the Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default period and no Sustainability Rate Adjustment or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth shall be made in Section 1.7(c)respect of such KPI Metric. (g) Solely to the extent that at any time there is only one Sustainability Structuring Agent under this Agreement and such Sustainability Structuring Agent ceases to be a Lender, the Borrower will use commercially reasonable efforts to seek to appoint another Person that is a Lender to fulfill the role of Sustainability Structuring Agent. (h) In Notwithstanding anything to the event Borrowers contrary herein, in addition to any amendment, modification or other supplement to any of their Subsidiaries acquire KPI Metric and/or the Sustainability Table pursuant to Section 2.23(f), any other amendment, modification or divest a business, facility or Subsidiary with Capacity other supplement to the Sustainability Table may be entered into in excess of 100MW, writing executed only by the Renewable Energy Generation Capacity Percentage Target Borrower and the Renewable Energy Generation Capacity Percentage Threshold Administrative Agent, each acting reasonably. Any such other amendment, modification or other supplement to the Sustainability Table pursuant to this Section 2.23(h) shall be adjusted become effective at the later of (x) 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment, modification or other supplement to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral all Lenders unless, prior to such acquisition or disposition in a manner and methodology that are time, Lenders comprising the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver Required Lenders have delivered to the Administrative Agent and the written notice that such Required Lenders a certificate that (i) calculates in reasonable detail object to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold amendment, modification or other supplement and (iiy) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days the date of effectiveness of such deliveryamendment, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdmodification or other supplement specified therein.

Appears in 1 contract

Samples: Credit Agreement (Sprouts Farmers Market, Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Sustainability Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofyear, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for Margin and the Revolving Loans incurred by DEI Facility Fee, if applicable, shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Applicable Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Sustainability Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Sustainability Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to this Section 1.7(c)1.17. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Applicable Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Pricing Administrative Agent of a Sustainability Certificate Date for such Pricing Certificate delivered pursuant to Section 8.5(q) based upon the KPI Metrics for such calendar year set forth in such Sustainability Certificate for the KPI Metrics Certificate delivered most recently ended calendar year (commencing with such Pricing Certificate the calendar year ending December 31, 2022) and the calculations of the Sustainability Applicable Margin Adjustment and the Sustainability Facility Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Margin and Facility Fee resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Sustainability Certificate for the immediately following period, the last day such Sustainability Certificate for such following period could have been delivered pursuant to the terms of Section 8.5(q)). (b) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin and Facility Fee will never be reduced or increased by more than 0.050.02% per annum and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%0.005% per annum, respectively, pursuant to the Sustainability Applicable Margin Adjustment and the Sustainability Facility Fee Adjustment, respectively, on Adjustment during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Fee by reason of meeting one or several both KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Sustainability Certificate with respect to a for any calendar year is delivered by DEI within the period set forth in this Borrower by the time required pursuant to Section 1.78.5(q), the Sustainability Applicable Margin Adjustment will be positive 0.05% and the Sustainability Facility Fee Adjustment will be positive 0.010.02% per annum and positive 0.005%, respectively, commencing on the last day by which such Sustainability Certificate was required to have been delivered pursuant to the terms of such period Section 8.5(q) and continuing until the day immediately prior fifth (5th) Business Day after the Borrower delivers a Sustainability Certificate to the next Administrative Agent; provided that, if the Borrower determines in good faith that it is not possible to calculate a KPI Metric for any calendar year for whatever reason (the “Specified KPI Metric”), the Sustainability Pricing Structuring Agent and the Borrower will negotiate in good faith to agree on the selection of an alternative measure that is customarily applied by Persons carrying out similar businesses or being subject to similar incentives in lieu of the Specified KPI Metric (the “Alternative KPI Metric”). If after twenty (20) Business Days from the day on which the Borrower was originally due to deliver a Sustainability Certificate in accordance with Section 8.5(q), the Borrower and the Sustainability Structuring Agent (acting on behalf of Required Lenders) agree on the selection of an Alternative KPI Metric, then the Sustainability Applicable Margin Adjustment Dateand Sustainability Facility Fee Adjustment shall be calculated based on such Alternative KPI Metric and the other KPI Metrics, excluding the Specified KPI Metric. If the Borrower and the Sustainability Structuring Agent do not agree on the selection of an Alternative KPI Metric, then the Sustainability Applicable Margin Adjustment and Sustainability Facility Fee Adjustment shall be calculated based on the KPI Metrics, excluding the Specified KPI Metric. In each case, the Sustainability Certificate shall be deemed to be updated to delete the Specified KPI Metric and include the Alternative KPI Metric, if applicable. In addition, if a Recalculation Event has occurred, then, within the twelve (12) month period following such Recalculation Event, the Borrower or the Sustainability Structuring Agent may notify such other party in writing that it has determined, in good faith, that a KPI Metric or any element of any table set out in the definitions of the terms “Employee Sustainability Training Metric” or “GRESB Metric” or any of the information set out in the Sustainability Table should be adjusted on account of such Recalculation Event. (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Applicable Margin Adjustment, the Sustainability Facility Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be promptly shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Sustainability Certificate Inaccuracy at the time of delivery of a Pricing Sustainability Certificate, and (ii) a proper calculation of the Sustainability Applicable Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics would have resulted in both an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Facility Fee for Commitments under any applicable period and an increase in the DEI Sublimit amount of interest payable by the Borrower for any such applicable period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on following written demand by the Administrative Agent (or, after the occurrence of an actual Event of Default under Section 8.1(f) or deemed entry of an order for relief (g) with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Borrower, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a the Borrower becomes aware of any Pricing Sustainability Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Applicable Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Sustainability Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Applicable Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics, as applicable, and shall be promptly shared with each Lender), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Applicable Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, Default unless (i) such Sustainability Certificate Inaccuracy would have resulted in an increase in the Borrowers comply Applicable Margin and Facility Fee for such period and (ii) the Borrower fails to make a payment with respect to such increase as required by the foregoing terms of this Section 1.7 1.17(d) with respect to such Pricing Sustainability Certificate InaccuracyInaccuracy following demand for payment by the Administrative Agent made in accordance with the foregoing terms of this Section 1.17(d). Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual Event of Default under Section 8.1(f) or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsg), (a) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by the Administrative Agent shall not constitute a Default or Event of Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that none of the Administrative Agent, the Sustainability Structuring Agent or any Arranger, acting in such capacities make any assurances as to (i) whether this Agreement meets any criteria or expectations of the Borrower or any Lender with regard to environmental impact and sustainability performance, or (ii) whether the characteristics of the relevant sustainability performance targets and/or key performance indicators included in the Agreement, including any environmental and sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-linked credit facilities. Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Applicable Margin Adjustment or Sustainability Facility Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Sustainability Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). The Sustainability Structuring Agent shall have the same immunities, indemnities and exclusions from liability as are prescribed in favor of the Administrative Agent in this Agreement, which shall apply mutatis mutandis. (gf) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or If an Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in has occurred and is continuing, the Sustainability Applicable Margin Adjustment and or Sustainability Facility Fee Adjustment being applied as set forth in Section 1.7(c)shall not apply to effect a reduction of the Applicable Margin and Facility Fee, respectively. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Whitestone REIT)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing CertificateCertificate in the manner and at the times described in this Section 2.20, and (ii) the Applicable Percentage for the Facility Revolver Commitment Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to this Section 1.7(c)2.20. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.02(f) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daycalculations, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Rate and the Revolver Commitment Fee resulting from a Pricing Certificate and the Sustainability Pricing Rate Adjustment Date and Sustainability Fee Adjustment related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage Certificate for the Facility Fee immediately following period, the last day such Pricing Certificate for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, such following period could have been delivered pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws6.02(f), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Syndicated Facility Agreement (Aecom)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.02(d) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in calculations, as applicable, therein (such KPI Metrics Certificate day, the "Sustainability Pricing Adjustment Date") and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Rate and the Commitment Fee resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 6.02(d)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% 2.5 basis points (.025%) and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.010.5 basis points (0.005%), in each case pursuant to the Sustainability Margin Rate Adjustment and or the Sustainability Fee Adjustment, respectivelyas applicable, on from the Applicable Rate and Commitment Fee that would have applied in the absence of such adjustments during any Sustainability Pricing Adjustment Datefiscal year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Rate or such Facility Commitment Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.76.02(d), the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% 0.5 basis points (0.005%) and the Sustainability Rate Adjustment will be positive 2.5 basis points (0.025%) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 6.02(d) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(Ai) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a "Pricing Certificate Inaccuracy") and, in and the case of any Lender, Borrower or such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (Bii) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and then, in each case, as applicable, (iiA) if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit for any such period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1x) the amount of interest and fees that should have been paid for such period over (2y) the amount of interest and fees actually paid for such period. If a period and (B) if the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the first (1st) Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.18(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph clause (d) shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphclause (d), (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Cisco Systems, Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Parent provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar fiscal year (commencing with the date the Administrative Agent’s receipt thereoffiscal year ending December 31, each a “Pricing Certificate Date”2023), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Interest Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 2.21 (but in no event shall any adjustment result in the Applicable Interest Rate Percentage being less than 0.00%) and (ii) the Applicable Commitment Fee Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability times described in this Section 2.21 (but in no event shall any adjustment result in the Applicable Commitment Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cPercentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.21(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each , and (B) each change in the Applicable Percentages on any Interest Rate Percentage and the Applicable Commitment Fee Percentage resulting from a Pricing Certificate, and the Sustainability Pricing Rate Adjustment Date and the Sustainability Fee Adjustment related thereto, shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.21(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). Notwithstanding the foregoing, to the extent an External Impacting Event occurs after the First Amendment Effective Date, there shall be no subsequent adjustment to the Applicable Interest Rate Percentage or the Applicable Commitment Fee Percentage resulting from the Resource Solutions Amount KPI Metric until the Resource Solutions Amount, Resource Solutions Threshold, Resource Solutions Target and/or the Sustainability Table with respect to the Resource Solutions Amount (or relevant provisions with respect thereto) then in effect are adjusted in accordance with Section 2.21(g) or (j) below. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearfiscal year of the Parent. It is further understood and agreed that that, unless otherwise agreed pursuant to Section 2.21(g) or (j) below, any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Interest Rate Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee AdjustmentPercentage, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment with respect to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several more KPI Metrics in any calendar fiscal year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Each applicable Sustainability Rate Adjustment or Sustainability Fee Adjustment shall only apply until the conclusion of such Applicable Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Parent within the period set forth in this Section 1.72.21(i), the Sustainability Margin Rate Adjustment will be positive 0.050.040% and the Sustainability Fee Adjustment will be positive 0.010.010% (such positive rates, collectively, the “Sustainability Threshold Adjustment”) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.21(i) and continuing until the day immediately prior Parent delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Parent or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each other Lender and the BorrowersParent), or (B) the Borrowers Parent and the Required Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)of the United States, automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Parent has received written notice ofdemand from the Administrative Agent, or have within ten (10) Business Days after the Parent has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Parent becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Parent of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics, as applicable), commencing on the fifth (5th) Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed not to be materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 2.21(d), if such information or calculation was made by the Parent in good faith based on information reasonably available to the Parent at the time such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, Default so long as the Borrowers comply Parent complies with the terms of Section 2.21(d) and this Section 1.7 2.21(e) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)of the United States, (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph subsection (d) shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d), (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-any Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Parent of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Certificate. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). Each party hereto hereby further agrees that neither the Administrative Agent nor the Sustainability Coordinators make any assurances as to (i) whether this Agreement meets any Borrower or Lender criteria or expectations with regard to environmental impact and sustainability performance, or (ii) whether the characteristics of the relevant sustainability performance targets and/or key performance indicators included in the Agreement, including any environmental and sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-linked credit facilities. (g) As soon To the extent any Resource Solutions Impacting Transaction, any External Impacting Event or any TRIR Impacting Transaction occurs after the First Amendment Effective Date, then (i) the Resource Solutions Amount, Resource Solutions Threshold, Resource Solutions Target, Total Recordable Incident Rate, TRIR Threshold, TRIR Target A, TRIR Target B and/or Sustainability Table (including relevant provisions with respect thereto), as available applicable, may be adjusted in a manner reasonably acceptable to the Parent and the Sustainability Coordinators giving effect to such Resource Solutions Impacting Transaction, External Impacting Event and/or TRIR Impacting Transaction, as applicable (any such adjustments, “Impacting Event Adjustments”), and the Sustainability Coordinators, the Parent and the Administrative Agent may amend this Agreement to incorporate such Impacting Event Adjustments which 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 (who shall promptly notify the Parent) written notice that such Required Lenders object to such amendment (and, in the event Required Lenders deliver a written notice objecting to any event within 120 days such amendment, an alternative amendment may be effectuated with the consent of the Required Lenders, the Parent and the Sustainability Coordinators), and/or (ii) unless otherwise provided pursuant to the foregoing clause (i), with respect to any TRIR Impacting Transaction, the Total Recordable Incident Rate with respect to any entity acquired as part of a TRIR Impacting Transaction shall be excluded from the calculation of Total Recordable Incident Rate hereunder for the first twelve (12) months immediately following the end closing date of each calendar such TRIR Impacting Transaction. Any adjustment pursuant to this Section 2.21(g) (solely to the extent not set forth in an amendment to this Agreement) shall be described in reasonable detail in the applicable Pricing Certificate delivered with respect to the fiscal year in which the applicable transaction or event occurred. This clause (commencing with g) shall supersede any provisions in Section 10.01 to the calendar year ending December 31contrary. (h) To the extent any Sustainability Coordinator ceases to be a Lender (or, 2021an Affiliate of a Lender), the Parent shall use commercially reasonable efforts to seek to appoint another Person that is a Lender (or an Affiliate of a Lender) to fulfill the role of such Sustainability Coordinator. (i) The Parent shall deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar fiscal year may be by no later than 150 days (or such later date agreed by the Sustainability Coordinator, but in any event not to exceed 180 days) after the end of such fiscal year (commencing with delivery in 2023 for the fiscal year ended December 31, 2022); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers Parent may elect not to deliver a Pricing Certificate, Certificate for any such fiscal year. Any such election or any other failure to deliver a Pricing Certificate shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Borrowers to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)2.21(c) above. (hj) In Notwithstanding anything to the event Borrowers contrary set forth herein, (i) any amendment, modification or other supplement to the Resource Solutions Amount, Resource Solutions Threshold, Resource Solutions Target, Total Recordable Incident Rate, TRIR Threshold, TRIR Target A, TRIR Target B and/or Sustainability Table (including relevant provisions with respect thereto), as applicable, in connection with any of their Subsidiaries acquire or divest a businessResource Solutions Impacting Transaction, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall External Impacting Event and/or TRIR Impacting Transaction may be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition entered into in a manner and methodology that are writing executed only by the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to Parent, the Administrative Agent and the Lenders a certificate that (i) calculates each Sustainability Coordinator in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold accordance with Section 2.21(g), and (ii) restates Exhibit 1.7-1 any other amendment, consent, supplement or waiver with such adjusted amountsrespect to any provisions relating to any KPI Metric, andthis Section 2.21 and any provision with respect the KPI Metrics (including any Sustainability Fee Adjustment or any Sustainability Rate Adjustment and any definitions, if Lenders constituting Required Lenders have not objected schedule or exhibit relating to such adjusted Renewable Energy Generation Capacity Percentage Target provisions) or the establishment of any additional KPI Metrics with respect to certain environmental, social and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days governance targets of the Parent and its Subsidiaries shall only require approval of the Required Lenders, the Parent and the Sustainability Coordinators hereunder, in each case so long as the adjustments (increase, decrease or no adjustment) to the otherwise applicable Commitment Fee, Applicable Rate for Base Rate Loans and Applicable Rate for Eurodollar RateTerm SOFR Loans/Letter of Credit Fee do not exceed (x) a 0.010% increase and/or decrease in the otherwise applicable Commitment Fee and (y) a 0.040% increase and/or decrease in the otherwise applicable Applicable Rate for Eurodollar RateTerm SOFR Loans and Letter of Credit Fees and the Applicable Rate for Base Rate Loans (it being understood that any such deliverymodification having the effect of reducing the Commitment Fee, then Exhibit 1.7-1 Applicable Rate for Base Rate Loans or Applicable Rate for Eurodollar RateTerm SOFR Loans to a level not otherwise permitted by this paragraph would require approval by all affected Lenders in accordance with Section 10.01). This clause (j) shall be deemed amended supersede any provisions in Section 10.01 to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdthe contrary.

Appears in 1 contract

Samples: Credit Agreement (Casella Waste Systems Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar fiscal year on and not more often than once in any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Margin and the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment Adjustment, respectively, as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect the manner and at the times described in this Section 2.22. Each of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth Business Day following receipt by the Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.01(i)(vi) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and each change in the Applicable Percentages on any Margin and the Applicable Percentage resulting from a Sustainability Pricing Margin Adjustment Date and a Sustainability Fee Adjustment shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-delivery of a Pricing CertificateCertificate for the immediately following period, zero the last day such Pricing CertificatesCertificate for such following period could have been delivered pursuant to the terms of Section 5.01(i)(vi)). If no Pricing Certificate is delivered by the Company within the period set forth in Section 5.01(i)(vi), the Sustainability Margin Adjustment will be an increase of 0.04% and the Sustainability Fee Adjustment will be an increase of 0.01%, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 5.01(i)(vi) and continuing until the Company delivers a Pricing Certificate to the Agent. If a Pricing Certificate is delivered by the Company within the period set forth in Section 5.01(i)(vi) but omits the requisite information with respect to any KPI Metric, the calculation of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment for such KPI Metric in respect of the applicable fiscal year shall be determined in accordance with clause (c) of the definitions of “Sustainability Margin Adjustment” and “Sustainability Fee Adjustment”. The parties hereto acknowledge and agree that failure to deliver a Pricing Certificate shall not constitute a Default or Event of Default. (b) For the avoidance of doubt: (i) only one Pricing Certificate may be delivered in respect of any calendar fiscal year. It is further understood and agreed that ; (ii) the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.050.04% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, in each case pursuant to the Sustainability Margin Adjustment and or the Sustainability Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Date. For the avoidance of doubt, fiscal year; (iii) any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Fee Applicable Percentage by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date ; and (iv) each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit Applicable Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit Applicable Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit Applicable Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed to be not materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 2.22(c), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time that such calculation was made. (ed) It is understood The parties hereto acknowledge and agreed agree that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Company complies with the terms of this Section 1.7 2.22(c) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 ten Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) paragraph and (cii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Interest prior to the such date that is 10 ten Business Days after such a written demand. (fe) Each party The parties hereto hereby agrees acknowledge and agree that the Agent and the Sustainability Agents make no assurances as to (i) whether this Agreement meets any Company or Lender criteria or expectations with regard to environmental impact and sustainability performance, or (ii) whether the characteristics of the relevant KPI Metrics included in the Agreement, including any environmental and sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-linked credit facilities. The parties hereto further acknowledge and agree that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Agents shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any (x) the relevant KPI Metrics or (y) the Sustainability Margin Adjustment or the Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry, when implementing any such pricing adjustment). (f) To the extent any event occurs (which would include, without limitation, a material disposition or material acquisition) which, in the opinion of the Company and the Sustainability Agents, acting reasonably, means that one or more of the KPI Metrics is no longer appropriate, then the Company will report to the Lenders that such KPI Metric will no longer apply. In such a scenario, the Company will then cease to refer to the applicable KPI Metrics in the Pricing Certificate for such period and no Sustainability Margin Adjustment or Sustainability Fee Adjustment shall be made in respect of such KPI Metric. (g) As soon as available Solely to the extent that at any time there is only one Sustainability Agent under this Agreement and in any event within 120 days following such Sustainability Agent ceases to be a Lender, the end Company will use commercially reasonable efforts to seek to appoint another Person that is a Lender to fulfill the role of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c)Agent. (h) In Notwithstanding anything to the event Borrowers contrary herein, any amendment, modification or any of their Subsidiaries acquire other supplement to the Sustainability Table may be entered into or divest amended in a business, facility or Subsidiary with Capacity in excess of 100MW, writing executed only by the Renewable Energy Generation Capacity Percentage Target Company and the Renewable Energy Generation Capacity Percentage Threshold Sustainability Agents, each acting reasonably, and acknowledged by the Agent (acting reasonably), and shall not require the consent of any other Lender (provided that, if any such amendment, modification or other supplement is not in connection with the occurrence of an event as contemplated by Section 2.22(f) and is reasonably determined by the Agent and/or the Sustainability Agents to be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver material to the Administrative interests of the Lenders, then the Agent and the Lenders a certificate that (i) calculates Sustainability Agents may grant or withhold consent in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdtheir respective sole discretion).

Appears in 1 contract

Samples: Credit Agreement (Jabil Inc)

Sustainability Adjustments. (a) DEI may deliver Following the delivery of a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Applicable KPI Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing CertificateCertificate in the manner and at the times described in this Section 2.22, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Applicable KPI Commitment Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to this Section 1.7(c)2.22. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Applicable KPI Margin Adjustment and the Sustainability Applicable KPI Commitment Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to the terms of Section 2.22(f), based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Applicable KPI Margin Adjustment and the Sustainability Applicable KPI Commitment Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daycalculations, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin and the Commitment Fee resulting from a Pricing Certificate and the Applicable KPI Margin Adjustment Date and the Applicable KPI Commitment Fee Adjustment related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.22(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% 5.0 basis points and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%1.0 basis point, in each case pursuant to the Sustainability Applicable KPI Margin Adjustment and or the Sustainability Applicable KPI Commitment Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Commitment Fee by reason of meeting application of one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Each applicable adjustment shall apply only during the applicable period set forth in Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date2.22(a)(B). (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is has been delivered by DEI the Borrower within the period set forth in this Section 1.72.22(f), the Sustainability Applicable KPI Margin Adjustment will be positive 0.05% 5.0 basis points and the Sustainability Applicable KPI Fee Adjustment will be positive 0.01% 1.0 basis point commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.22(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Agent. For the avoidance of doubt, the Borrower may elect not to deliver a Pricing Adjustment DateCertificate and such election shall not constitute a Default or Event of Default. (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee any KPI Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each other Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee any KPI Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Fronting Bank, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)bankruptcy code, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderFronting Bank), but in any event within 10 ten Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.over

Appears in 1 contract

Samples: Revolving Credit Agreement (Oncor Electric Delivery Co LLC)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to 2.20.1 Effective as of the fifth Business Day following receipt by Administrative Agent of a Sustainability Certificate delivered pursuant to Section 2.20.5 (such day, the “Sustainability Pricing Adjustment Date”) in respect of the most recently ended calendar year on any date prior to Reference Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year ending December 31, each a “Pricing Certificate Date”)2024, which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Committed Loan Margin shall be increased decreased or decreased (or neither increased nor decreased)remain the same, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Committed Loan Margin resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. 2.20.2 In the event Borrower does not deliver a Sustainability Certificate within the period set forth in Section 2.20.5 or any Sustainability Certificate shall be incomplete and fail to satisfy the requirements set forth in the definition of “Sustainability Certificate” (b) including the failure to set forth the Sustainability Rate Adjustment and calculations in reasonable detail of the Sustainability Metrics , in each case, for the applicable Reference Year), the Sustainability Rate Adjustment will be zero commencing on the fifth Business Day following the last day such Sustainability Certificate should have been delivered pursuant to the terms of Section 2.20.5 and continuing until the fifth Business Day following receipt by Administrative Agent of a complete Sustainability Certificate for such Reference Year. 2.20.3 For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood Reference Year and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Committed Loan Margin by reason reference to any of meeting one or several KPI the Sustainability Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Date. (c) adjustment is to occur. It is hereby further understood and agreed that if no such Pricing Certificate with respect the Applicable Committed Loan Margin will never be reduced by more than 0.025%, pursuant to a calendar year is delivered by DEI within the period Sustainability Rate Adjustment during any Reference Year; provided, however, for the avoidance of doubt, any changes to the Applicable Committed Loan Margin pursuant to any Sustainability Rate Adjustment in excess of the amounts set forth in this Section 1.7, the Sustainability Margin Adjustment will above shall be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior subject to the next Sustainability Pricing Adjustment Dateconsent of “each Lender directly affected thereby” in accordance with Section 10.01. (d) 2.20.4 If (i)(A) a Borrower or any Lender Administrative Agent becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Rate Adjustment or the KPI Sustainability Metrics as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) andand Administrative Agent notifies Borrower thereof, in the case or (B) any Lender becomes aware of any Lender, Sustainability Certificate Inaccuracy and such Lender delivers, not later than 10 Business Days ten (10) days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (BC) the Borrowers and the Lenders agree that there was Borrower becomes aware of a Pricing Sustainability Certificate Inaccuracy at the time of delivery of a Pricing Certificateand delivers notice thereof to Administrative Agent, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Sustainability Metrics would have resulted in an increase no adjustment in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Committed Loan Margin for any applicable period, (x) commencing on the Borrowers fifth Business Day following delivery of a corrected Sustainability Certificate to Administrative Agent, the Applicable Committed Loan Margin shall be adjusted to reflect such corrected calculations of the Sustainability Rate Adjustment, which corrected Sustainability Certificate shall be due within twenty (20) days of any notice of a Sustainability Certificate Inaccuracy and (y) Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 Business Days twenty (20) days after the Borrowers have Xxxxxxxx has received written notice of, or have agreed in writing has determined that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, Default or otherwise result in the Borrowers comply with failure of any condition precedent to any advance or the terms issuance of this Section 1.7 with respect to such Pricing Certificate Inaccuracyany Letter of Credit. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (ax) any additional amounts required to be paid pursuant the immediate preceding to this paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (I) a written demand is made for such payment by the Administrative Agent in accordance with this paragraph or (II) twenty (20) days after Borrower has received written notice of, or has determined that there was, a Sustainability Certificate Inaccuracy (such paragraphearlier date, the “Certificate Inaccuracy Payment Date”), (by) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (cz) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the default rate provided in pursuant to Section 3.1(b) 2.10.3 prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) 2.20.5 As soon as available and in any event within 120 135 days following the end of each calendar fiscal year of Borrower (commencing with the calendar fiscal year ending December 31, 20212024), Borrower shall deliver to Administrative Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Required Lenders, a Pricing Sustainability Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year the Borrowers Reference Year Borrower may elect not to deliver a Pricing Sustainability Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 120135-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c)2.20. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Revolving Credit Agreement (Essex Portfolio Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar yearreporting period, (i) the Applicable Percentage Rate for the Revolving Loans incurred by DEI Commitment Fee shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect and (ii) the Applicable Rate for Term Rate, Letters of a calendar yearCredit, Base Rate and Canadian Prime Rate shall be increased or decreased, as applicable, pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment as set forth in respect of such calendar year shall be determined pursuant to Section 1.7(c)Pricing Certificate. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Fee Adjustment and the Sustainability Fee Rate Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.02(d) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Fee Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayRate Adjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 6.02(d)). It is hereby understood and agreed that if the KPI Metrics Report attached to such Pricing Certificate does not contain all material information and data with respect to a KPI Metric, the Greenhouse Gas Emissions Intensity Reduction Fee Adjustment Amount, Gender Pay Equity Fee Adjustment Amount, Greenhouse Gas Emissions Intensity Reduction Rate Adjustment Amount or Gender Pay Equity Rate Adjustment Amount, as applicable, with respect to such KPI Metric, shall be positive for so long as such material information and data remains outstanding or incomplete in the reasonable opinion of the Sustainability Coordinator. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearreporting period. It is further understood and agreed that the Applicable Percentage Rate for Revolving Loans incurred by DEI the Commitment Fee will never be reduced or increased by more than 0.05% 1.0 basis point pursuant to the Sustainability Fee Adjustment and that the Applicable Percentage Rate for the Facility Fee for Commitments under the DEI Sublimit Term Rate, Letters of Credit, Base Rate and Canadian Prime Rate will never be reduced or increased by more than 0.01%, 5.0 basis points pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment, respectively, on during any Sustainability Pricing Adjustment Datefiscal year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Rate by reason of meeting one or several both KPI Metrics in any calendar year reporting period shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Pricing Certificate is delivered or required to be delivered pursuant to Section 6.02(d). Further, in no event shall any of the Applicable Rate for the Commitment Fee, Term Rate, Letters of Credit, Base Rate and Canadian Prime Rate be less than zero basis points per annum, including, for the avoidance of doubt, as a result of an adjustment to the Applicable Rate for the Commitment Fee, Term Rate, Letters of Credit, Base Rate and Canadian Prime Rate based upon the Sustainability Pricing Fee Adjustment Dateor Sustainability Rate Adjustment, as applicable. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Company by the time required pursuant to Section 1.76.02(d), the Sustainability Margin Adjustment will be positive 0.05% and (i) the Sustainability Fee Adjustment will be positive 0.01% 1.0 basis point and (ii) the Sustainability Rate Adjustment will be positive 5.0 basis points, commencing on the last day of such period Pricing Certificate was required to have been delivered and continuing until the day immediately prior Company delivers a Pricing Certificate for the applicable fiscal year to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate AMERICAS/2022747386.20 Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any applicable period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Lenders promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include (i) corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable, and (ii) a report addressed to the Administrative Agent of the KPI Metrics Auditor or Xxxxxx Xxxxxx Xxxxxx Public Limited Company (or any other firm designated by the Borrower and reasonably acceptable to the Sustainability Coordinator), as applicable, certifying such corrections to the calculations of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Pricing Certificate Inaccuracy with respect to any applicable period shall not constitute a Default or Event of Default; provided, that, provided that the Borrowers comply Company complied with the terms of this Section 1.7 2.20(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Rate Adjustment or any Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.AMERICAS/2022747386.20

Appears in 1 contract

Samples: Credit Agreement (Lululemon Athletica Inc.)

Sustainability Adjustments. (a) DEI may The Company may, at its election, deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar fiscal year on any date prior to the date that is 120 180 days following the last day of such calendar fiscal year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers Upon delivery of a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage Rate for the Revolving Loans incurred by DEI the Borrowers shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage Rate for the Facility Unused Line Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar fiscal year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages Rate on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that the Applicable Percentage Rate for Revolving Loans incurred by DEI the Borrowers will never be reduced or increased by more than 0.05% and that the Applicable Percentage Rate for the Facility Unused Line Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages Rate for such Revolving Loans or such Facility Unused Line Fee by reason of meeting one or several KPI Metrics in any calendar fiscal year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if If, for any fiscal year, either (i) no such Pricing Certificate with respect shall have been delivered for such fiscal year or (ii) the Pricing Certificate delivered for such fiscal year shall fail to a calendar year is delivered by DEI within include the period set forth in this Section 1.7Renewable Electricity Percentage or Sustainable Packaging Percentage for such fiscal year, then the Sustainability Margin Adjustment will be positive 0.050.050% and and/or the Sustainability Fee Adjustment will be positive 0.01% 0.010%, as applicable, in each case commencing on the last day such Pricing Certificate could have been delivered in accordance with the terms of clause (a) above (it being understood that, in the case of the foregoing clause (ii), the Sustainability Margin Adjustment or the Sustainability Fee Adjustment will be determined in accordance with such period and continuing until the day immediately prior Pricing Certificate to the next extent the (A) Sustainability Margin Adjustment or the Sustainability Fee Adjustment is included in such Pricing Adjustment DateCertificate and (B) the Administrative Agent has separately received the Renewable Electricity Percentage and/or Sustainable Packaging Percentage, as applicable). (d) If (i)(Ai) a Borrower or any Lender the Company becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages Rate for the Revolving Loans incurred by DEI the Borrowers and the Facility Unused Line Fee for Commitments under any period during the DEI Sublimit prior twelve months, the Company shall notify the Administrative Agent of such inaccuracy and (x) commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Rate for any periodthe Loans and the Unused Line Fee shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable, and (y) the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after Days) by the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, Administrative Agent an amount equal to the excess of (1) the amount of interest for the Loans and fees Unused Line Fees that should have been paid for such twelve month period over (2) the amount of interest for the Loans and fees Unused Line Fees actually paid for such twelve month period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages Rate for the Revolving Loans incurred by DEI and the Facility Unused Line Fee for Commitments under any period during the DEI Sublimit for any periodprior twelve months, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), ) (x) commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages Rate for the Revolving Loans incurred by DEI and the Facility Unused Line Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable, and (y) an amount equal to the excess of (1) the amount of interest and fees actually paid for such twelve month period over (2) the amount of interest and fees that should have been paid for such twelve month period shall be credited to the account of the Borrowers and shall reduce the amount of interest for the Loans and Unused Line Fees owing by the Borrowers in future periods to the Lenders (on a pro rata basis) on the date of payment of such interest for the Loans or Unused Line Fees for such future period. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; providedDefault and, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bi) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (cii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b2.08(b) prior to the date that is 10 Business Days after such a demand. For the avoidance of doubt, the failure by the Company to deliver a Pricing Certificate shall not under any circumstance constitute a Default or an Event of Default. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Dell Technologies Inc.)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment the Effective Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until 2024 Reference Year, the date immediately preceding Applicable Margin shall be reduced by 0.01% without requiring the next Borrower to deliver a Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed Certificate for such period; provided, that if no such Pricing Sustainability Certificate with respect to a calendar year for the 2024 Reference Year is delivered by DEI within the period set forth in this Section 1.71.5(b) (or if such Sustainability Certificate shall be incomplete or fail to satisfy the requirements set forth in the definition of “Sustainability Certificate”), the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day provisions of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment DateSection 1.5(d) shall apply. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 100 days following the end of each calendar year of the Borrower (commencing with the calendar year ending December 31, 20212024), the Borrower shall deliver to the Agent and the Lenders, in form and detail satisfactory to the Agent and the Majority Lenders, a Pricing Sustainability Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Sustainability Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 120100-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c1.5(d)). In the event the Borrower’s fiscal year is changed to a non-calendar year fiscal year, following prior written notice to the Agent and the Lenders, the Borrower will be permitted to adjust the timing of delivery of the Sustainability Certificate at its election in a manner intended to maintain consistency with the foregoing. (hc) Effective as of the fifth Business Day following receipt by the Agent of a Sustainability Certificate delivered pursuant to Section 1.5(b) (such day, the “Sustainability (d) In the event Borrowers the Borrower does not deliver a Sustainability Certificate for any Reference Year within the period set forth in Section 1.5(b) or any Sustainability Certificate shall be incomplete or fail to satisfy the requirements set forth in the definition of their Subsidiaries acquire “Sustainability Certificate” (including the failure to set forth the Sustainability Rate Adjustment and the Sustainability Facility Fee Adjustment and calculations in reasonable detail of the KPI Metrics, in each case, for the applicable Reference Year), the Sustainability Rate Adjustment will be positive 0.04% and the Sustainability Facility Fee Adjustment will be positive 0.01% commencing on the fifth Business Day following the last day such Sustainability Certificate should have been delivered pursuant to the terms of Section 1.5(b) and continuing until the fifth Business Day following receipt by the Agent of a complete Sustainability Certificate for such Reference Year. (e) For the avoidance of doubt, only one Sustainability Certificate may be delivered in respect of any Reference Year and any adjustment to the Applicable Margin or divest a businessthe Facility Fee by reference to any of the KPI Metrics in any year shall not be cumulative year-over-year. Each applicable adjustment shall only apply until the date on which the next adjustment is to occur. It is further understood and agreed that the Applicable Margin will never be reduced or increased by more than 0.04% and that the Facility Fee will never be reduced or increased by more than 0.01%, facility pursuant to the Sustainability Rate Adjustment and the Sustainability Facility Fee Adjustment, respectively, during any Reference Year; provided that, and notwithstanding anything to the contrary in this Agreement (including any provision of Section 8.1 requiring the consent of all Lenders for reductions in interest rates), the definitions of KPI Metrics, Qualifying Building, Qualifying Buildings Applicable Margin Adjustment, Qualifying Buildings Facility Fee Adjustment, Qualifying EV Charging Station, Qualifying Percentage, Qualifying Percentage Target A, Qualifying Percentage Target B, Qualifying Percentage Threshold A, Qualifying Percentage Threshold B, Sustainability Certificate, Sustainability Certificate Inaccuracy, Sustainability Facility Fee Adjustment, Sustainability Metric Auditor, Sustainability Pricing Adjustment Date, Sustainability Rate Adjustment, Sustainability-Related Information, Sustainability Report and the Sustainability Table may be amended or Subsidiary otherwise modified with Capacity the consent of the Borrower, the Agent and the Majority Lenders; provided, however, for the avoidance of doubt, any changes to the Applicable Margin pursuant to any Sustainability Rate Adjustment and the Facility Fee pursuant to the Sustainability Facility Fee Adjustment in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold amounts set forth above shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver subject to the Administrative Agent and the consent of all Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 accordance with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdSection 8.1.

Appears in 1 contract

Samples: Credit Agreement (Eastgroup Properties Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar yearFiscal Year, (i) the Applicable Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 4.17 (but in no event shall any adjustment result in the Applicable Rate Percentage being less than 0.00%) and (ii) the Applicable Commitment Fee Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability times described in this Section 4.17 (but in no event shall any adjustment result in the Applicable Commitment Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cPercentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall not be applicable for the relevant Fiscal Year unless (i) at least two of the three KPI Metrics are equal to or more than the applicable Sustainability Target set forth in the Sustainability Table and no KPI Metric is less than the applicable Sustainability Threshold set forth in the Sustainability Table or (ii) at least two of the three KPI Metrics are less than the applicable Sustainability Threshold set forth in the Sustainability Table and no KPI Metric is equal to or more than the applicable Sustainability Target set forth in the Sustainability Table, (B) each of the Sustainability Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 4.17(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment, as applicable, therein (such day, the “Sustainability Pricing Adjustment Date”) and (C) each change in the Applicable Rate Percentage and the Applicable Commitment Fee Percentage resulting from a Pricing Certificate and the Sustainability Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 4.17(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearFiscal Year. It is further understood and agreed that any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Rate Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee AdjustmentPercentage, respectively, on any resulting therefrom shall be reset to “zero” following the conclusion of such Applicable Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Company within the period set forth in this Section 1.74.17(i), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% (such positive rates, collectively, the “Threshold Adjustment”) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 4.17(i) and continuing until the day immediately prior Company delivers a Pricing Certificate to the next Administrative Agent. In the event no Pricing Certificate is delivered for a Fiscal Year by June 15th of such year, the Sustainability Pricing Rate Adjustment Dateand Sustainability Fee Adjustment for such Fiscal Year shall be the Threshold Adjustment. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, was a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed to be not materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 4.17(d), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Company complies with the terms of this Section 1.7 4.17(e) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the default rate provided in Section 3.1(b) prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-any Sustainability Structuring Agent shall have any (i) responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate or (and ii) right to review, audit or otherwise evaluate any calculation by the Company of any Sustainability Fee Adjustment or any Sustainability Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). In addition, the Company shall have no obligation to disclose any further data, computations or other information to the Administrative Agent, any Sustainability Structuring Agent or any Lender with respect to any KPI Metric, Sustainability Target or Sustainability Threshold. (g) As soon as available and in To the extent any event within 120 days following occurs (which would include, without limitation, a material disposition or material acquisition) which, in the end opinion of each calendar year the Company and the Sustainability Structuring Agents, acting reasonably, means that one or more of the Sustainability Targets or Sustainability Thresholds set forth in the Sustainability Table is no longer applicable given changes in the Company’s structure, then the Company and the Sustainability Structuring Agents will report to the Lenders that such Sustainability Targets and Sustainability Thresholds will no longer apply. In such a scenario, the Company will then cease to refer to the applicable KPI Metrics, Sustainability Targets and Sustainability Thresholders in the Pricing Certificate for such period. (commencing with h) To the calendar year ending December 31extent a Sustainability Structuring Agent ceases to be a Lender, 2021), the Company shall use commercially reasonable efforts to seek to appoint another Person that is a Lender to fulfill the role such Sustainability Structuring Agent. (i) The Company shall use commercially reasonable efforts to deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar year may be Fiscal Year (commencing with delivery in 2022 for the Fiscal Year ended in 2021) within thirty (30) days of the release of the annual SASB Aligned Report (but in no event earlier than April 1st of any Fiscal Year); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year unless the Borrowers may elect Company elects not to deliver a Pricing CertificateCertificate for such Fiscal Year, such Pricing Certificate shall be delivered no later than June 15th of any Fiscal Year. Any such election shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Company to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)4.17(c) above. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Five Year Revolving Credit Agreement (BlackRock Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.7(f) based upon the KPI Metrics Metric for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.7(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that (i) the LIBORTerm SOFR Applicable Percentage for Revolving Loans incurred by DEI Margin, the Adjusted Daily Simple SOFR Applicable Margin and the Base Rate Applicable Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, % pursuant to the Sustainability Margin Adjustment during any calendar yeartwelve-month period and the Sustainability Fee Adjustment, respectively, on (ii) at no time shall any Sustainability Pricing Adjustment DateApplicable Margin be less than 0.0%. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several reference to the KPI Metrics Metric Target in any calendar year Reference Year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the KPI Metric for the applicable Reference Year, within the period set forth in this Section 1.71.7(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.7(f). (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics Metric would have resulted in an increase in no adjustment to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.7(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in default rateDefault Rate pursuant to Section 3.1(b) 2.14 prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any no responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 90 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), the Borrower may deliver a Pricing Certificate to the Administrative Agent (and the Administrative Agent shall promptly provide a copy to each Lender) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 12090-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In ). Subject to the event Borrowers or any provisions of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWSection 1.7(b), the Renewable Energy Generation Capacity Percentage Target Borrower may, at its election exercisable by delivering written notice to the Administrative Agent, adjust the Reference Year and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that timing of delivery of the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition Pricing Certificate in a manner and methodology that are intended to maintain consistency with the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdforegoing.

Appears in 1 contract

Samples: Unsecured Revolving Credit Agreement (First Industrial Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Sustainability Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor not decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment shall be determined as of the fifth Business Day following receipt by the Pricing Administrative Agent of a Sustainability Certificate Date for such Pricing Certificate delivered pursuant Section 3.11(f) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Margin resulting from a Sustainability Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Sustainability Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Sustainability Certificate, the last day such Sustainability Certificate could have been delivered pursuant to the terms of Section 3.11(f)). (b) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.010.025%, pursuant to the Sustainability Margin Rate Adjustment during any Reference Year; provided that, and notwithstanding anything to the contrary in this Agreement, the definitions of Tenant SBT Percentage and the Sustainability Fee AdjustmentTable may be amended or otherwise modified with the consent of the Borrower, respectivelythe Sustainability Structuring Agent, on any Sustainability Pricing Adjustment Datethe Administrative Agent and the Requisite Lenders. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason reference to any of meeting one or several the KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Sustainability Certificate with respect to a calendar year is delivered by DEI the Borrower, or any Sustainability Certificate shall be incomplete and fail to include the KPI Metric for the applicable Reference Year, within the period set forth in this Section 1.73.11(f), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.010.00% commencing on the last day such Sustainability Certificate could have been delivered pursuant to the terms of such period Section 3.11(f) and continuing until the day immediately prior Borrower delivers a Sustainability Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable Reference Year. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Rate Adjustment or the KPI Metrics as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) and, in the case of any Lender, and such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower becomes aware of a Sustainability Certificate Inaccuracy and the Lenders Borrower and the Administrative Agent shall mutually agree that there was a Pricing Sustainability Certificate Inaccuracy at the time of delivery of a Pricing any Sustainability Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics Metric would have resulted in no adjustment or an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any applicable period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 3.11(d) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (ax) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (I) a written demand is made for such payment by the Administrative Agent in accordance with such paragraphparagraph or (II) 10 Business Days after the Borrower has received written notice of, or has agreed in writing that there was, a Sustainability Certificate Inaccuracy (such date, the “Certificate Inaccuracy Payment Date”), (by) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (cz) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Post Default Rate prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (fe) Each party hereto hereby agrees that neither the Administrative Sustainability Structuring Agent nor the Co-Sustainability Structuring Administrative Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Sustainability Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 days following the end of each calendar fiscal year of the Borrower (commencing with the calendar fiscal year ending December 31, 20212022), the Borrower shall deliver to the Administrative Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Requisite Lenders: a Pricing Sustainability Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Sustainability Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c3.11(c). (h) ). In the event Borrowers or any of their Subsidiaries acquire or divest the Borrower’s fiscal year is changed to a business, facility or Subsidiary with Capacity in excess of 100MWnon-calendar year fiscal year, the Renewable Energy Generation Capacity Percentage Target and Borrower will be permitted to adjust the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that timing of delivery of the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition Sustainability Certificate at its election in a manner and methodology that are intended to maintain consistency with the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdforegoing.

Appears in 1 contract

Samples: Credit Agreement (NETSTREIT Corp.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreasednot adjusted), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Banking Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.07(f) based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.07(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several the KPI Metrics Metric in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI Borrower within the period set forth in this Section 1.71.07(f), the no Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 1.07(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 Business Banking Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders Banks agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics Metric would have resulted in an increase in no adjustment to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersBanks or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Bank or any LenderL/C Issuer), but in any event within 10 Business Banking Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics Metric would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI MetricsMetric, as applicable), commencing on the Business Banking Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI MetricsMetric, as applicable. (e) . It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.07(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 20212022), Borrower may deliver a Pricing Certificate to the Administrative Agent (and the Administrative Agent shall promptly provide a copy to each Bank) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7year; provided, that, for any calendar year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c1.07(c). (h) ). In the event Borrowers or any Borrower’s fiscal year is changed to a non-calendar year fiscal year, Borrower will be permitted to adjust the timing of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess delivery of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdPricing Certificate at its election.

Appears in 1 contract

Samples: Term Loan Agreement (Vornado Realty Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate pursuant to the Administrative Agent Section 6.14(a) in respect of the its most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofAnnual Period, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage Margin (including for purposes of determining the Revolving Loans incurred by DEI Commitment Fee) shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Pricing Certificate Date for such Administrative Agent of a Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations calculation of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin (including for purposes of determining the Commitment Fee) resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-delivery of a Pricing Certificate, zero the last day such Pricing CertificatesCertificate could have been delivered pursuant to Section 6.14(a)); provided that if any Sustainability Pricing Adjustment Date shall occur before the last day of an Interest Period, no change to the Applicable Margin as a result of the Sustainability Margin Adjustment shall be effective for purposes of Section 2.6 until the first day of the immediately succeeding Interest Period. (b) For the avoidance of doubt, it is understood and agreed that (i) only one Pricing Certificate may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%Annual Period, pursuant to the (ii) any Sustainability Margin Adjustment shall be iterative and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant year and (iii) Sustainalytics delivered a second party opinion to this Section made the Borrower on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DateAugust 17, 2021. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.76.14(a), the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% five (5) basis points, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 6.14(a) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Administrative Agent and a new Applicable Margin is determined pursuant to Section 2.13(a) above and, pending delivery of a Pricing Adjustment DateCertificate no Default or Event of Default shall occur in relation to the failure to deliver such Pricing Certificate. (d) If (i)(A) a any of the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a on the applicable Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 thirty (30) Business Days after obtaining knowledge thereof, thereof delivers a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description who shall be shared with furnish a copy to each Lender of the Lenders and the Borrowers), Borrower) or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a the relevant Pricing Certificate, Certificate and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit for any such period, then the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (acting at the direction of the Required Lenders) (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, automatically and without further action by the Administrative Agent or any Lender), but in any no event within 10 less than ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to to: (x) the excess of (1) the amount of interest and fees that should have been paid for such period over (2y) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit for any such period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) To the extent any event occurs (which would include, without limitation, a material disposal or material acquisition) which, in the opinion of the Borrower and the Sustainability Structuring Agent, acting reasonably and in good faith, means that one or more of the KPI Metrics is no longer appropriate, then the Borrower and the Sustainability Structuring Agent will report to the Lenders that such KPI will no longer apply in relation to the Loans for the remainder of the Facilities. In such a scenario, the Borrower will then cease to refer to the applicable KPI Metrics in the Pricing Certificate for such period and the Applicable Margin shall be adjusted to reflect the corrected calculations of such KPI Metrics. (f) To the extent the Sustainability Structuring Agent ceases to be a Lender, the Borrower undertakes to use reasonable endeavors to seek to appoint another entity that is a Lender to fulfil the role of Sustainability Structuring Agent. (g) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; providedDefault under this Agreement, that, provided that the Borrowers comply Borrower complies with the terms of this Section 1.7 2.13 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph to clause (d) above shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphclause (d) above, (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) ), and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fh) Each party hereto hereby agrees that neither the The Administrative Agent nor the Co-and Sustainability Structuring Agent shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment (or Sustainability Fee Adjustment (for the KPI Metrics or any of the other data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate, or for evaluating or determining any Pricing Certificate Inaccuracy (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively conclusively, and shall not incur any liability in so relying, on any such certificatecertificate or related notice, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Cemex Sab De Cv)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor not decreased), as applicable, ) pursuant to the Sustainability Margin Applicable Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment Amount as set forth in such KPI Metrics Pricing Certificate. If ; provided, that in no Pricing Certificate is so delivered in respect event will the Applicable Margin be reduced to less than zero as a result of a calendar year, the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c)Amount. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Applicable Rate Adjustment and the Sustainability Fee Adjustment Amount shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 7.02(f) based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Applicable Rate Adjustment and the Sustainability Fee Adjustment in Amount therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 7.02(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than one basis points (0.01%, ) pursuant to the Sustainability Margin Applicable Rate Adjustment and Amount from the Sustainability Fee Adjustment, respectively, on Applicable Rate that would have applied in the absence of such adjustment during any Sustainability Pricing Adjustment Datefiscal year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Rate by reason of meeting one or several the KPI Metrics Metric in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is delivered or able to be delivered pursuant to Section 7.02(f). (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.77.02(f), the Sustainability Margin Applicable Rate Adjustment Amount will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% zero basis points (0.00%) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 7.02(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(Ai) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Applicable Rate Adjustment Amount or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in and the case of any Lender, Borrower or such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (Bii) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and then, in each case, as applicable, (iiA) if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment Amount or the KPI Metrics Metric would have resulted in an increase no change in the Applicable Percentages Rate for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any such period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1x) the amount of interest and fees that should have been paid for such period over (2y) the amount of interest and fees actually paid for such period. If a period and (B) if the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment Amount or the KPI Metrics Metric would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment Amount or the KPI MetricsMetric, as applicable), commencing on the first (1st) Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment Amount or the KPI MetricsMetric, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.18(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph clause (d) shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphclause (d), (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Applicable Rate Adjustment or Sustainability Fee Adjustment Amount (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Phillips Edison & Company, Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofended December 31, each a “Pricing Certificate Date”)2024, which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreasednot adjusted), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined and applied as of the fifth Business Banking Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.07(f) based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.07(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.010.010.05%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several the KPI Metrics Metric in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI Borrower with regard to a particular calendar year within the period set forth in this Section 1.71.07(f), the nothe Sustainability Margin Adjustment will be positive made to the Applicable Marginpositive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 1.07(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable calendar year. (d) If (i)(A) a Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 Business Banking Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes Banksbecomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Term Loan Agreement (Vornado Realty Lp)

Sustainability Adjustments. (a( A ) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for Margin and the Revolving Loans incurred by DEI Letter of Credit Fee Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the applicable Facility Fee for Commitments under Rate set forth in the DEI Sublimit Pricing Schedule shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.02(d) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, as applicable, therein (such KPI Metrics Certificate day, the “ ”) and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Margin, the Facility Fee Rate and the Letter of Credit Fee Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-non- delivery of a Pricing Certificate, zero the last day such Pricing Certificates) may be Certificate could have been delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy6.02(d)). Notwithstanding anything to the contrary herein............................................................................................................... ARTICLE 3 T AXES , unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demandY IELD P ROTECTION AND I LLEGALITY SECTION 3.01 . . (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (General Mills Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Operating Partnership provides a Pricing Certificate to the Administrative Agent as provided herein in respect of the its then most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar yearAnnual Period, (i) the Applicable Percentage Margin for purposes of calculating interest on the Revolving Loans incurred by DEI Advances shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage Margin for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Facility Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.03(c) based upon the KPI Metrics for such calendar year Certified Capacity set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment in such KPI Metrics Certificate and calculations, as applicable, therein (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate or the ​ delivery of an incomplete Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to Section 5.03(c)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood Annual Period, and agreed that the Applicable Percentage Margin for Revolving Loans incurred the Advances and the Letter of Credit Fee will not be reduced or increased pursuant to this Section 2.23 by DEI more than 4.0 basis points (such limit, the “Maximum Margin Adjustment”), and the Applicable Margin for the Facility Fee will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%1.0 basis points, in each case pursuant to the Sustainability Margin Adjustment and or the Sustainability Facility Fee Adjustment, respectivelyas applicable, on in respect of any Sustainability Pricing Adjustment DateAnnual Period (such limit, the “Maximum Facility Fee Adjustment”). For the avoidance of doubt, any adjustment to the Applicable Percentages Margin for such Revolving Loans or such the Advances and the Letter of Credit Fee, and/or the Applicable Margin for the Facility Fee by reason of meeting one or several KPI Metrics the Certified Capacity in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if If no such Pricing Certificate with respect to a calendar year is delivered by DEI the Operating Partnership (or any Pricing Certificate shall be incomplete) within the period set forth in this Section 1.75.03(c), the Sustainability Margin Adjustment will be positive 0.05% 4.0 basis points and the Sustainability Facility Fee Adjustment will be positive 0.01% 1.0 basis points commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 5.03(c) and continuing until the day immediately prior Operating Partnership delivers a complete Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower any of the Operating Partnership or any Lender becomes the Required Lenders become aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Certified Capacity as reported in a on the applicable Pricing Certificate as certified by the KPI Metric Auditor (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, and not later than 10 ten (10) Business Days after obtaining knowledge thereof, the Required Lenders or the Operating Partnership, as applicable, deliver a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail including, to the extent applicable, calculations supporting such material inaccuracy (which description who shall be shared with furnish a copy to each Lender of the Lenders and the Borrowers), Operating Partnership) or (B) the Borrowers Operating Partnership and the Required Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a the relevant Pricing Certificate, (ii) the KPI Metric Auditor confirms in writing that there was in fact a Pricing Certificate Inaccuracy and (iiiii) a proper calculation of the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Certified Capacity would have resulted in an increase in the Applicable Percentages Margin for the Revolving Loans incurred by DEI Advances and the Letter of Credit Fee, and the Applicable Margin for the Facility Fee for Commitments under the DEI Sublimit for any such period, then the Borrowers Operating Partnership shall be obligated to pay to the Administrative Agent for the ratable account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Operating Partnership under any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Law, automatically and without further action by the Administrative Agent or any Lender), but in any no event within 10 more than ten (10) Business Days after the Borrowers have Operating Partnership has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to to: the excess of (1x) the amount of interest and fees that should would have been paid payable for such period at the rate giving effect to the proper Sustainability Facility Fee Adjustment or Sustainability Margin Adjustment, as applicable over (2y) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If a Borrower the Operating Partnership becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Certified Capacity would have resulted in a decrease in the Applicable Percentages Margin for the Revolving Loans incurred by DEI Advances and the Letter of Credit Fee, and the Applicable Margin for the Facility Fee for Commitments under the DEI Sublimit for any such period, then, upon receipt by the Administrative Agent of notice from the Borrowers Operating Partnership of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Adjustment the Sustainability Facility Fee Adjustment or the KPI MetricsCertified Capacity, as applicable), commencing on the Business Day following receipt by the ​ ​ Administrative Agent of such notice, the Applicable Percentages Margin for the Revolving Loans incurred by DEI Advances and the Letter of Credit Fee, and the Applicable Margin for purpose of calculating interest on the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment or the KPI MetricsCertified Capacity, as applicable. (e) It is understood and agreed that any Notwithstanding anything herein to the contrary, no Pricing Certificate Inaccuracy Inaccuracy, in and of itself, shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of Default under this Section 1.7 with respect to such Pricing Certificate InaccuracyAgreement. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower the Operating Partnership under the any Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Law, (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph to clause (d) above shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d) above, (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by the Administrative Agent shall not constitute a Default or Event of Default (whether retroactively or otherwise) ), and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided specified in Section 3.1(b2.07(b) prior to the date that is 10 Business Days after such a demand. In the event the Operating Partnership fails to comply with the terms of this Section 2.23, the Lenders’ sole recourse with respect to such non-compliance shall be limited to the True-Up Amount. (f) Each party hereto hereby agrees that neither None of the Administrative Agent nor the Agent, any Co-Sustainability Structuring Agent or any Lender Party shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Operating Partnership of any Sustainability Margin Facility Fee Adjustment or any Sustainability Fee Margin Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any KPI Metric Report or Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Global Senior Credit Agreement (Digital Realty Trust, L.P.)

Sustainability Adjustments. (a) DEI Within 180 days following the end of each fiscal year of the Company, the Company may deliver a Pricing KPI Compliance Certificate for the most recently-ended fiscal year; provided, that, for any fiscal year the Company may elect not to deliver a KPI Compliance Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a KPI Compliance Certificate by the Administrative Agent end of such 180-day period shall result in the Sustainability Fee Adjustment and the Sustainability Spread Adjustment being applied as set forth in Section 2.24). Following the date on which the Company provides a KPI Compliance Certificate in respect of the most recently ended calendar fiscal year on and not more often than once in any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Spreads and the Facility Fee Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Spread Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment Adjustment, respectively, as set forth in such KPI Metrics CertificateCompliance Certificate in the manner and at the times described in this Section 2.24. If no Pricing Certificate is so delivered in respect Each of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Spread Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth Business Day following receipt by the Pricing Certificate Date for such Pricing Administrative Agent of a KPI Compliance Certificate based upon the KPI Metrics for such calendar year set forth in the such KPI Metrics Certificate delivered with such Pricing Compliance Certificate and the calculations of the Sustainability Margin Spread Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and each change in the Applicable Percentages on any Spreads and the Facility Fee Percentage resulting from a Sustainability Pricing Spread Adjustment Date and a Sustainability Fee Adjustment shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage KPI Compliance Certificate for the Facility Fee for Commitments under immediately following period, the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages last day such KPI Compliance Certificate for such Revolving Loans or such Facility Fee by reason of meeting one or several following period could have been delivered as described above). If the Company elects not to deliver a KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Compliance Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7as provided above, the Sustainability Margin Spread Adjustment will be positive 0.05an increase of 0.04% and the Sustainability Fee Adjustment will be positive an increase of 0.01% %, commencing on the last day of such period KPI Compliance Certificate could have been delivered as described above and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) Company delivers a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Compliance Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Agent. The parties hereto AMERICAS/2023579349.7 53 acknowledge and the Borrowers), or (B) the Borrowers and the Lenders agree that there was failure to deliver a Pricing KPI Compliance Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Facility Agreement (Xylem Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Operating Partnership provides a Pricing Certificate to the Administrative Agent as provided herein in respect of the its then most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar yearAnnual Period, (i) the Applicable Percentage Margin for purposes of calculating interest on the Revolving Loans incurred by DEI Advances shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage Margin for the Facility Unused Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Unused Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Adjustment and the Sustainability Unused Fee Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.03(c) based upon the KPI Metrics for such calendar year Certified Capacity set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Unused Fee Adjustment in such KPI Metrics Certificate and calculations, as applicable, therein (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment DateDate (or, in the case of non- Digital Realty – Second Amended and Restated Yen Credit Agreement ​ delivery of a Pricing Certificate or the delivery of an incomplete Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to Section 5.03(c)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood Annual Period, and agreed that the Applicable Percentage Margin for Revolving Loans incurred the Advances and the Letter of Credit Fee will not be reduced or increased pursuant to this Section 2.23 by DEI more than 3.0 basis points (such limit, the “Maximum Margin Adjustment”), and the Applicable Margin for the Unused Fee will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%2.0 basis points, in each case pursuant to the Sustainability Margin Adjustment and or the Sustainability Unused Fee Adjustment, respectivelyas applicable, on in respect of any Sustainability Pricing Adjustment DateAnnual Period (such limit, the “Maximum Unused Fee Adjustment”). For the avoidance of doubt, any adjustment to the Applicable Percentages Margin for such Revolving Loans or such Facility the Advances and the Letter of Credit Fee, and/or the Applicable Margin for the Unused Fee by reason of meeting one or several KPI Metrics the Certified Capacity in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if If no such Pricing Certificate with respect to a calendar year is delivered by DEI the Operating Partnership (or any Pricing Certificate shall be incomplete) within the period set forth in this Section 1.75.03(c), the Sustainability Margin Adjustment will be positive 0.05% 3.0 basis points and the Sustainability Unused Fee Adjustment will be positive 0.01% 2.0 basis points commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 5.03(c) and continuing until the day immediately prior Operating Partnership delivers a complete Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower any of the Operating Partnership or any Lender becomes the Required Lenders become aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Unused Fee Adjustment or the KPI Metrics Certified Capacity as reported in a on the applicable Pricing Certificate as certified by the KPI Metric Auditor (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, and not later than 10 ten (10) Business Days after obtaining knowledge thereof, the Required Lenders or the Operating Partnership, as applicable, deliver a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail including, to the extent applicable, calculations supporting such material inaccuracy (which description who shall be shared with furnish a copy to each Lender of the Lenders and the Borrowers), Operating Partnership) or (B) the Borrowers Operating Partnership and the Required Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a the relevant Pricing Certificate, (ii) the KPI Metric Auditor confirms in writing that there was in fact a Pricing Certificate Inaccuracy and (iiiii) a proper calculation of the Sustainability Margin Adjustment, the Sustainability Unused Fee Adjustment or the KPI Metrics Certified Capacity would have resulted in an increase in the Applicable Percentages Margin for the Revolving Loans incurred by DEI Advances and the Facility Letter of Credit Fee, and the Applicable Margin for the Unused Fee for Commitments under the DEI Sublimit for any such period, then the Borrowers Operating Partnership shall be obligated to pay to the Administrative Agent for the ratable account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Operating Partnership under any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Law, automatically and without further action by the Administrative Agent or any Lender), but in any no event within 10 more than ten (10) Business Days after the Borrowers have Operating Partnership has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to to: the excess of (1x) the amount of interest and fees that should would have been paid payable for such period at the rate giving effect to the proper Sustainability Unused Fee Adjustment or Sustainability Margin Adjustment, as applicable over (2y) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If a Borrower the Operating Partnership becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, the Sustainability Unused Fee Adjustment or the KPI Metrics Certified Capacity would have resulted in a decrease in the Applicable Percentages Margin for the Revolving Loans incurred by DEI Advances and the Facility Letter of Credit Fee, and the Applicable Margin for the Unused Fee for Commitments under the DEI Sublimit for any such period, then, upon receipt by the Administrative Agent of notice from the Borrowers Operating Partnership of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, the Sustainability Unused Fee Adjustment or the KPI MetricsCertified Capacity, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the 69 Digital Realty – Second Amended and Restated Yen Credit Agreement ​ ​ Applicable Percentages Margin for the Revolving Loans incurred by DEI Advances and the Facility Letter of Credit Fee, and the Applicable Margin for purpose of calculating interest on the Unused Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, the Sustainability Unused Fee Adjustment or the KPI MetricsCertified Capacity, as applicable. (e) It is understood and agreed that any Notwithstanding anything herein to the contrary, no Pricing Certificate Inaccuracy Inaccuracy, in and of itself, shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of Default under this Section 1.7 with respect to such Pricing Certificate InaccuracyAgreement. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower the Operating Partnership under the any Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Law, (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph to clause (d) above shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d) above, (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by the Administrative Agent shall not constitute a Default or Event of Default (whether retroactively or otherwise) ), and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided specified in Section 3.1(b2.07(b) prior to the date that is 10 Business Days after such a demand. In the event the Operating Partnership fails to comply with the terms of this Section 2.23, the Lenders’ sole recourse with respect to such non-compliance shall be limited to the True-Up Amount. (f) Each party hereto hereby agrees that neither None of the Administrative Agent nor Agent, the Co-Sustainability Structuring Agent or any Lender Party shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Operating Partnership of any Sustainability Margin Unused Fee Adjustment or any Sustainability Fee Margin Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any KPI Metric Report or Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Digital Realty Trust, L.P.)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to Effective as of the fifth Business Day following receipt by the Administrative Agent of a Sustainability Certificate delivered pursuant to Section 1.10(e) (such day, the “Sustainability Pricing Adjustment Date”) in respect of the most recently ended calendar year on any date prior to Reference Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year ending December 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2023, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant Subject to Section 1.7(c1.10(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change adjustment in the Applicable Percentages on any Rate and the Commitment Fee resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) In the event the Borrower does not deliver a Sustainability Certificate within the period set forth in Section 1.10(e) for the applicable Reference Year or any Sustainability Certificate for such Reference Year shall be incomplete and fail to satisfy the requirements set forth in the definition of “Sustainability Certificate” (including the failure to set forth the Sustainability Rate Adjustment, the Sustainability Commitment Fee Adjustment and/or calculations in reasonable detail of the KPI Metrics, in each case, for the applicable Reference Year), the Sustainability Rate Adjustment will be positive 0.05% and the Sustainability Commitment Fee Adjustment will be positive 0.01% commencing on the fifth Business Day following the last day such Sustainability Certificate was required to be delivered pursuant to Section 1.10(e) for such Reference Year and continuing until the fifth Business Day following receipt by the Administrative Agent of a complete Sustainability Certificate for such Reference Year. (c) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar Reference Year and any adjustment to the Applicable Rate or the Commitment Fee by reference to any of the KPI Metrics for any Reference Year shall not be cumulative year-over-year. Each Sustainability Rate Adjustment and Sustainability Commitment Fee Adjustment for any Reference Year shall only apply until the earlier of (i) the immediately succeeding Sustainability Pricing Adjustment Date and (ii) the fifth Business Day following the last day a Sustainability Certificate was required to be delivered pursuant to Section 1.10(e) for the immediately succeeding Reference Year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment, respectively, on during any Reference Year; provided that, and notwithstanding anything to the contrary in this Agreement (including any provision of Section 11.01 requiring the consent of “each Lender directly affected thereby” for reductions in interest rates), the definitions of Racial & Ethnic Diversity Percentage, Racial & Ethnic Diversity Percentage Applicable Rate Adjustment Amount, Racial & Ethnic Diversity Percentage Commitment Fee Adjustment Amount, Women in Leadership Percentage, Women in Leadership Percentage Applicable Rate Adjustment Amount, Women in Leadership Percentage Commitment Fee Adjustment Amount and the Sustainability Pricing Adjustment Date. For Table may be amended or otherwise modified with only the consent of the Borrower, the Administrative Agent and the Required Lenders; provided, however, for the avoidance of doubt, any adjustment changes to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments Rate pursuant to this Section made on any Sustainability Pricing Rate Adjustment Date shall only apply for and the period until Commitment Fee pursuant to the date immediately preceding Sustainability Commitment Fee Adjustment in excess of the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period amounts set forth in this Section 1.7, the Sustainability Margin Adjustment will above shall be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior subject to the next Sustainability Pricing Adjustment Dateconsent of “each Lender directly affected thereby” in accordance with Section 11.01. (d) If (i)(Ai) a Borrower or any Lender (A) the Administrative Agent becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) andand the Administrative Agent notifies the Borrower in writing thereof, in the case or (B) any Lender becomes aware of any Lender, Sustainability Certificate Inaccuracy and such Lender delivers, not later than 10 Business Days ten (10) days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (BC) the Borrowers and the Lenders agree that there was Borrower becomes aware of a Pricing Sustainability Certificate Inaccuracy at and delivers notice thereof in writing to the time of delivery of a Pricing CertificateAdministrative Agent, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in no adjustment or an increase in the Applicable Percentages Rate or Commitment Fee for any applicable period, then (x) commencing on the Revolving Loans incurred by DEI fifth Business Day following delivery of a corrected Sustainability Certificate to the Administrative Agent, the Applicable Rate and Commitment Fee shall be adjusted to reflect such corrected calculations of the Sustainability Rate Adjustment and the Facility Sustainability Commitment Fee for Commitments under Adjustment and (y) the DEI Sublimit for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any Lenderthe L/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have agreed in writing has determined that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, provided that the Borrowers comply Borrower complies with the terms of this Section 1.7 1.10(d) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (ax) any additional amounts required to be paid pursuant the immediate preceding to this paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (I) a written demand is made for such payment by the Administrative Agent in accordance with this paragraph or (II) 10 Business Days after the Borrower has received written notice of, or has determined that there was, a Sustainability Certificate Inaccuracy (such paragraphearlier date, the “Certificate Inaccuracy Payment Date”), (by) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (cz) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the default rate provided in pursuant to Section 3.1(b2.08(b) prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (ge) As soon as available and in any event within 120 90 days following the end of each calendar fiscal year of the Borrower (commencing with the calendar fiscal year ending December 31, 20212023), the Borrower shall deliver to the Administrative Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Required Lenders, a Pricing Sustainability Certificate for the most recently-ended calendar year may be Reference Year; provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Sustainability Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 12090-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c1.10(b). (h) ). In the event Borrowers or any of their Subsidiaries acquire or divest the Borrower’s fiscal year is changed to a businessnon-calendar fiscal year, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver following prior written notice to the Administrative Agent and the Lenders Lenders, the Borrower will be permitted to adjust the timing of delivery of the Sustainability Certificate at its election in a certificate that manner intended to maintain consistency with the foregoing. (f) If, after the Amendment No. 1 Effective Date, there occurs any Sustainability Recalculation Event, and either (i) calculates the Borrower notifies the Administrative Agent and the Sustainability Structuring Agent in reasonable detail writing that the Borrower requests an amendment to any provision hereof to eliminate, accommodate or otherwise take into account the effect of such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and Sustainability Recalculation Event, or (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting the Administrative Agent or the Sustainability Structuring Agent notifies the Borrower that the Required Lenders have not objected request an amendment to any provision or provisions hereof for such purpose (it being understood and agreed that any such notice may be given before or after such Sustainability Recalculation Event has occurred), then (A) the Borrower, the Administrative Agent, the Sustainability Structuring Agent and the Lenders shall negotiate in good faith to amend the provisions hereof to eliminate, accommodate or otherwise take into account the effect of such Sustainability Recalculation Event for the period from and after the occurrence of such Sustainability Recalculation Event, and (B) the provisions of this Agreement shall be interpreted on the basis of the provisions in effect and applied immediately prior to such adjusted Renewable Energy Generation Capacity Percentage Target Sustainability Recalculation Event for a period of not more than 90 days (unless the provisions hereof shall have been amended in accordance herewith or such notice shall have been withdrawn). If, after 90 days following any such notice, the consent of the Borrower, the Administrative Agent, the Sustainability Structuring Agent and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days the Required Lenders under Section 11.01 has not been obtained, there will cease to be any Sustainability Rate Adjustment and any Sustainability Commitment Fee Adjustment until such time as the parties hereto can agree upon any such adjustments in accordance with the terms hereof, and during such period, no party to this Agreement shall, without the prior written consent of such deliverythe Administrative Agent, then Exhibit 1.7the Sustainability Structuring Agent and the Borrower, make any public or private representations or description of the credit facility described in this Agreement as a sustainability-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdlinked loan.

Appears in 1 contract

Samples: Credit Agreement (Huron Consulting Group Inc.)

Sustainability Adjustments. (a) DEI After the Amendment Closing Date, the Borrowers, in consultation with the Sustainability Coordinator, shall be entitled to establish specified key performance indicators (“KPIs”) with respect to certain environmental, social and governance (“ESG”) targets of the Borrowers and its Subsidiaries. The Sustainability Coordinator, the Borrowers and the Required Lenders may deliver a amend this Agreement (such amendment, the “ESG Amendment”) solely for the purpose of incorporating the KPIs and other related provisions (the “ESG Pricing Certificate Provisions”) into this Agreement, and any such amendment shall become effective upon execution by the Borrowers, the Sustainability Coordinator and Lenders constituting the Required Lenders. Upon the effectiveness of any such ESG Amendment, based on the Borrowers’ performance against the KPIs, certain adjustments (increase, decrease or no adjustment) to the Administrative Agent in respect of otherwise applicable Commitment Fee, Applicable Percentage and LC Participation Fee will be made; provided that the most recently ended calendar year on any date prior to the date that is 120 days following the last day amount of such calendar year (the date the Administrative Agent’s receipt thereof, each adjustments shall not result in a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect decrease of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificatecase of the Commitment Fee, more than one (1) basis point from the otherwise applicable Commitment Fee and (ii) in the case of the Applicable Percentage for and LC Participation Fee, more than five (5) basis points from the Facility Fee for Commitments under the DEI Sublimit shall be increased otherwise applicable Applicable Percentage or decreased (or neither increased nor decreased)LC Participation Fee, as applicable. The KPIs, pursuant to the Borrowers’ performance against the KPIs, and any related pricing adjustments resulting therefrom will be determined based on certain certificates, reports and other documents, in each case, setting forth the calculation and measurement of the KPIs in a manner that is aligned with the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, Linked Loan Principles and agreed between the Sustainability Margin Adjustment Borrowers and the Sustainability Fee Adjustment in respect Coordinator (each acting reasonably). Following the effectiveness of such calendar year the ESG Amendment: (i) any modification to the ESG Pricing Provisions shall be determined pursuant subject only to Section 1.7(c). For purposes the consent of the foregoingRequired Lenders so long as such modification does not have the effect of reducing the Commitment Fee, Applicable Percentage or LC Participation Fee to a level not otherwise permitted by Section 2.24(a); and (Aii) if a any other modification to the ESG Pricing Certificate is so delivered Provisions (other than as provided for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Section 2.24(a)(i) above) shall be determined as subject only to the consent of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment DateRequired Lenders. (b) For The Sustainability Coordinator will (i) assist the avoidance of doubt, only one Borrowers in determining the ESG Pricing Certificate Provisions in connection with the ESG Amendment and (or, ii) assist the Borrowers in preparing informational materials focused on ESG to be used in connection with the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DateESG Amendment. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth This Section shall supersede any provisions in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior 9.07 to the next Sustainability Pricing Adjustment Datecontrary. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Hartford Financial Services Group, Inc.)

AutoNDA by SimpleDocs

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate pursuant to the Administrative Agent Section 6.14(a) in respect of the its most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofAnnual Period, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Pricing Certificate Date for such Administrative Agent of a Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations calculation of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-delivery of a Pricing Certificate, zero the last day such Pricing CertificatesCertificate could have been delivered pursuant to Section 6.14(a)); provided that if any Sustainability Pricing Adjustment Date shall occur before the last day of an Interest Period, no change to the Applicable Margin as a result of the Sustainability Margin Adjustment shall be effective for purposes of Section 2.6 until the first day of the immediately succeeding Interest Period. (b) For the avoidance of doubt, it is understood and agreed that (i) only one Pricing Certificate may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%Annual Period, pursuant to the (ii) any Sustainability Margin Adjustment shall be iterative and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant year and (iii) Sustainalytics delivered a second party opinion to this Section made the Borrower on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DateAugust 17, 2021. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.76.14(a), the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% five (5) basis points, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 6.14(a) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Administrative Agent and a new Applicable Margin is determined pursuant to Section 2.13(a) above and, pending delivery of a Pricing Adjustment DateCertificate no Default or Event of Default shall occur in relation to the failure to deliver such Pricing Certificate. (d) If (i)(A) a any of the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a on the applicable Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 thirty (30) Business Days after obtaining knowledge thereof, thereof delivers a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description who shall be shared with furnish a copy to each Lender of the Lenders and the Borrowers), Borrower) or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a the relevant Pricing Certificate, Certificate and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages Margin for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any such period, then the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (acting at the direction of the Required Lenders) (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, automatically and without further action by the Administrative Agent or any Lender), but in any no event within 10 less than ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to to: (x) the excess of (1) the amount of interest and fees that should have been paid for such period over (2y) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages Margin for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any such period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) To the extent any event occurs (which would include, without limitation, a material disposal or material acquisition) which, in the opinion of the Borrower and the Sustainability Structuring Agent, acting reasonably and in good faith, means that one or more of the KPI Metrics is no longer appropriate, then the Borrower and the Sustainability Structuring Agent will report to the Lenders that such KPI will no longer apply in relation to the Loans for the remainder of the Term Facility. In such a scenario, the Borrower will then cease to refer to the applicable KPI Metrics in the Pricing Certificate for such period and the Applicable Margin shall be adjusted to reflect the corrected calculations of such KPI Metrics. (f) To the extent the Sustainability Structuring Agent ceases to be a Lender, the Borrower undertakes to use reasonable endeavors to seek to appoint another entity that is a Lender to fulfil the role of Sustainability Structuring Agent. (g) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; providedDefault under this Agreement, that, provided that the Borrowers comply Borrower complies with the terms of this Section 1.7 2.13 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph to clause (d) above shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphclause (d) above, (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) ), and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fh) Each party hereto hereby agrees that neither the The Administrative Agent nor the Co-and Sustainability Structuring Agent shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment (or Sustainability Fee Adjustment (for the KPI Metrics or any of the other data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate, or for evaluating or determining any Pricing Certificate Inaccuracy (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively conclusively, and shall not incur any liability in so relying, on any such certificatecertificate or related notice, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Cemex Sab De Cv)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar fiscal year (commencing with the date the Administrative Agent’s receipt thereoffiscal year ending October 2, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2022, (i) the Applicable Interest Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 2.18 (but in no event shall any adjustment result in the Applicable Interest Rate Percentage being less than 0.00%) and (ii) the Applicable Commitment Fee Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability times described in this Section 2.18 (but in no event shall any adjustment result in the Applicable Commitment Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cPercentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.18(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment, as applicable, therein (such day, the “Sustainability Pricing Adjustment Date”) and (B) each change in the Applicable Interest Rate Percentage and the Applicable Commitment Fee Percentage resulting from a Pricing Certificate and the Sustainability Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.18(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearfiscal year of the Company. It is further understood and agreed that any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Interest Rate Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee AdjustmentPercentage, respectively, on any resulting therefrom shall be reset to “zero” following the conclusion of such Applicable Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Company within the period set forth in this Section 1.72.18(i), the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% [reserved] commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.18(i) and continuing until the day immediately Company delivers a Pricing Certificate to the Administrative Agent. In the event no Pricing Certificate is delivered for a fiscal year by June 30th of such year, the Sustainability Rate Adjustment and Sustainability Fee Adjustment with respect to such fiscal year shall be the Threshold Adjustment. In the event no Sustainability Report is delivered for the fiscal year ended October 3, 2021 prior to delivery of the next Pricing Certificate for the fiscal year ending October 2, 2022, the Sustainability Pricing Rate Adjustment Dateand Sustainability Fee Adjustment with respect to such fiscal year shall be the Threshold Adjustment. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, was a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed to be not materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 2.18(d), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, Default so long as the Borrowers comply Company complies with the terms of this Section 1.7 2.18(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code of the United States (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph subsection (d) shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d), (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Certificate. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). (g) As soon as available and in To the extent any event within 120 days following occurs (which would include, without limitation, a material disposition or material acquisition) which, in the end opinion of each calendar year the Company and the Sustainability Coordinator, acting reasonably, means that one or more of the Sustainability Targets or Sustainability Thresholds set forth in the Sustainability Table is no longer applicable given changes in the Company’s structure, then the Company and the Sustainability Coordinator will report to the Lenders that such Sustainability Targets and Sustainability Thresholds will no longer apply. In such a scenario, the Company will then cease to refer to the applicable KPI Metrics, Sustainability Targets and Sustainability Thresholders in the Pricing Certificate for such period. (commencing with h) To the calendar year ending December 31, 2021extent the Sustainability Coordinator ceases to be a Lender (or an Affiliate of a Lender), the Company shall use commercially reasonable efforts to seek to appoint another Person that is a Lender (or an Affiliate of a Lender) to fulfill the role of the Sustainability Coordinator. (i) The Company shall use commercially reasonable efforts to deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar fiscal year may be (commencing with delivery in 2023 for the fiscal year ended in 2022) within sixty (60) days of the release of the annual Sustainability Report (but in no event earlier than February 1st of any fiscal year); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year unless the Borrowers may elect Company elects not to deliver a Pricing CertificateCertificate for such fiscal year, such Pricing Certificate shall be delivered no later than June 30th of any fiscal year. Any such election shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Company to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)2.18(c) above. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Tetra Tech Inc)

Sustainability Adjustments. (a) DEI may deliver Following the delivery of a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to and the date that is 120 days following publication (or delivery through an intranet website) of the last day of Annual KPI Report for such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Aggregate KPI Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing CertificateCertificate in the manner and at the times described in this Section 2.23, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Aggregate KPI Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to this Section 1.7(c)2.23. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Aggregate KPI Margin Adjustment and the Sustainability Aggregate KPI Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following the later to occur of (x) the receipt by the Administrative Agent of a Pricing Certificate Date delivered pursuant to Section 2.23(f) and (y) the date on which the Annual KPI Report for such Pricing Certificate the applicable calendar year is publicly disclosed, based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Aggregate KPI Margin Adjustment and the Sustainability Aggregate KPI Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin and the Commitment Fee Rate resulting from a Pricing Certificate and the Aggregate KPI Margin Adjustment Date and the Aggregate KPI Fee Adjustment related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.23(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% 5.0 basis points and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate will never be reduced or increased by more than 0.01%1.0 basis point, in each case pursuant to the Sustainability Aggregate KPI Margin Adjustment and or the Sustainability Aggregate KPI Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Commitment Fee Rate by reason of meeting application of one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Each applicable adjustment shall apply only during the applicable period set forth in Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date2.23(a)(ii)(B). (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is has been delivered by DEI the Borrower within the period set forth in this Section 1.72.23(f), the Sustainability Aggregate KPI Margin Adjustment will be positive 0.05% 5.0 104486778_2104486778_9 basis points and the Sustainability Aggregate KPI Fee Adjustment will be positive 0.01% 1.0 basis point commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.23(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a an Authorized Officer of the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee any KPI Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 five (5) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each other Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee any KPI Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent Agent, for the account of the applicable Lenders (including, without limitation, the Swingline Lenders), as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid by the Borrower for such period over (2) the amount of interest and fees actually paid by the Borrower for such period. If a an Authorized Officer of the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee KPI Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee such KPI Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee such KPI Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; , provided, that, that the Borrowers comply Borrower complies with the terms of this Section 1.7 2.23 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, (ai) any additional amounts required to be paid pursuant the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) or Event of Default and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or nor shall such additional amounts accrue interest at the rate provided in pursuant to Section 3.1(b2.13(b) prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) No later than five (5) Business Days following the publication of the Annual KPI Report for any calendar year (commencing with the Annual KPI Report for the calendar year ending December 31, 2021), and in any event no earlier than April 1st and no later than June 30th of each calendar year (such date, the “Pricing Certificate Delivery Date”) (commencing with June 30, 2022), the Borrower shall deliver to the Administrative Agent a Pricing Certificate for the most recently-ended calendar year; provided, that, (i) such Pricing Certificate may be marked “confidential” and may be delivered to the Administrative Agent on, prior to, or after the date on which the Annual KPI Report is publicly disclosed (provided, that, for the avoidance of doubt, the Administrative Agent shall be permitted to share the Pricing Certificate with the Lenders) and (ii) for any calendar year the Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate on or prior to the Pricing Certificate Delivery Date shall result in the Aggregate KPI Margin Adjustment and the Aggregate KPI Fee Adjustment being applied as set forth in Section 2.23(c)). (g) Each party hereto hereby agrees that neither the Administrative Agent nor the any Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee KPI Adjustment (or any of the data or computations 104486778_2104486778_9 that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent Agents may rely conclusively on any such certificate, without further inquiry). (gh) As soon as available To the extent that each of the Co-Sustainability Structuring Agents ceases to be a Lender, the Borrower will use commercially reasonable efforts to seek to appoint one or more other Persons (each of which shall be a Lender) to fulfill the role of a Co-Sustainability Structuring Agent. (i) Notwithstanding the foregoing provisions of this Section 2.23 or any other provision to the contrary contained in this Agreement or any other Loan Document, after October 15, 2026, (i) this Section 2.23, (ii) the adjustments to the Applicable Margin and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as Commitment Fee Rate set forth in this Section 1.7; provided2.23 (including any such adjustments then in effect that were made pursuant to Section 2.23(a) or Section 2.23(c), thatas applicable, for any calendar year based on the Borrowers may elect not most recent Pricing Certificate delivered (or that the Borrower failed to deliver) pursuant to Section 2.23(f)), and (iii) the reporting requirements (including the requirement to deliver a Pricing Certificate) contained in this Section 2.23, shall terminate and be of no further force or effect; provided, however, that Sections 2.23(d) and 2.23(e) (including the obligations of the Borrower pursuant to such election shall not constitute a Default or Event of Default (but such failure Sections with respect to so deliver a any Pricing Certificate by the end of Inaccuracy) shall survive such 120-day period shall result termination and remain in the Sustainability Margin Adjustment full force and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c)effect at all times following such date. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Tucson Electric Power Co)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to (beginning with the date that is 120 days following the last day delivery of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a for the calendar yearyear 2022), (i) the Applicable Percentage for the Revolving Loans incurred by DEI Base Rate Margin and SOFR Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment shall be determined applied as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.1(j) based upon the KPI Metrics for such calendar year and performance of the Sustainability Performance Targets set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages Base Rate Margin, the SOFR Margin and the Commitment Fee Rate resulting from a Pricing Certificate shall be effective commencing on any and including the applicable Sustainability Pricing Adjustment Date shall be effective during (or, in the period commencing on and including case of non-delivery of a Pricing Certificate, the last day such Sustainability Pricing Adjustment Date and ending on Certificate could have been delivered pursuant to the date immediately preceding the next Sustainability Pricing Adjustment Dateterms of Section 5.1(j)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Base Rate Margin and the SOFR Margin will never be reduced or increased by more than 0.05% relative to the unadjusted SOFR Margin and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate will never be reduced or increased by more than 0.01%0.02% relative to the unadjusted Commitment Fee Rate, pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Base Rate Margin, the SOFR Margin, or such Facility Commitment Fee Rate by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant ; provided that, (i) if the SOFR Margin and/or Commitment Fee Rate are reduced relative to the unadjusted SOFR Margin and/or the unadjusted Commitment Fee Rate, as applicable, in any year, they may be increased in a subsequent year by non-performance of the Sustainability Performance Targets and (ii) if the SOFR Margin and/or Commitment Fee Rate are increased relative to the unadjusted SOFR Margin and/or the unadjusted Commitment Fee Rate, as applicable, in any year, they may be decreased in a subsequent year by performance of the Sustainability Performance Targets, but, in each case, subject to the limitations of the second sentence of this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Dateparagraph (b). (c) It is hereby understood and agreed that if no such that, subject to the limitations of the second sentence in paragraph (b) above, in the event the Borrower fails to timely deliver a Pricing Certificate in accordance with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.75.1(j), (i) the Sustainability Margin Rate Adjustment will be positive 0.05% and (ii) the Sustainability Commitment Fee Adjustment will be positive 0.01% 0.02%, in each case, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 5.1(j) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Administrative Agent for such Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower the Administrative Agent or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in and the case of any Lender, Administrative Agent or such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Borrower (and with respect to knowledge of such Lender, the Administrative Agent Agent) describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower becomes aware of a Pricing Certificate Inaccuracy and the Lenders Borrower and the Administrative Agent shall mutually agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for Base Rate Margin, the Revolving Loans incurred by DEI and the Facility SOFR Margin or Commitment Fee for Commitments under the DEI Sublimit for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Bank, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or in connection with any comparable event under non-U.S. debtor relief lawsother Bankruptcy Event), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for Base Rate Margin, the Revolving Loans incurred by DEI and the Facility SOFR Margin or Commitment Fee for Commitments under the DEI Sublimit for any period, thenthen the Borrower shall receive a credit against subsequent interest payable on the Loans or fees payable pursuant to Section 2.12, upon receipt by in an amount equal to the Administrative Agent excess of (1) the amount of interest and fees actually paid for such period over (2) the amount of interest and fees that should have been paid for such period (for the avoidance of doubt, with respect to any Lender, such credit shall apply to amounts of interest and fees which have accrued from and after delivery of the notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections pursuant to the calculations Section 5.1(k) regardless of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or time period to which the KPI Metrics, as applicable)Pricing Certificate Inaccuracy relates which may be a period before such Person was a Lender hereunder) and, commencing on the fifth (5th) Business Day following receipt by the Administrative Agent of such noticethe applicable corrections to the Sustainability Rate Adjustment, Sustainability Commitment Fee Adjustment or the KPI Metrics, as the case may be, pursuant to Section 5.1(k), the Applicable Percentages for Base Rate Margin, the Revolving Loans incurred by DEI and the Facility SOFR Margin or Commitment Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, Sustainability Commitment Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.23(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or in connection with any comparable event under non-U.S. debtor relief lawsother Bankruptcy Event), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph to Section 2.23(d) shall not be due and payable until the date that is 10 Business Days after earlier to occur of (i) a written demand is made for such payment by the Administrative Agent in accordance with Section 2.23(d) or (ii) ten (10) Business Days after the Borrower has received written notice of, or has agreed in writing that there was, a Pricing Certificate Inaccuracy (such paragraphdate, the “Certificate Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Agent nor and the Co-Sustainability Structuring Agent Advisor shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Rate Adjustment or Sustainability Commitment Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Senior Revolving Credit Facility (Kinetik Holdings Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the delivery of a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate, solely with respect to Parent and not with respect to any other Borrower, shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Aggregate KPI Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing CertificateCertificate in the manner and at the times described in this Section 2.22, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate, solely with respect to Parent and not with respect to any other Borrower, shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Aggregate KPI Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to this Section 1.7(c)2.22. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Aggregate KPI Margin Adjustment and the Sustainability Aggregate KPI Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.22(f) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Aggregate KPI Margin Adjustment and the Sustainability Aggregate KPI Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daycalculations, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate and the Commitment Fee Rate resulting from a Pricing Certificate and the Aggregate KPI Margin Adjustment Date and the Aggregate KPI Fee Adjustment related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.22(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% 5.0 basis points and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate will never be reduced or increased by more than 0.01%1.0 basis points, in each case pursuant to the Sustainability Aggregate KPI Margin Adjustment and or the Sustainability Aggregate KPI Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Rate or such Facility the Commitment Fee Rate by reason of meeting application of one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Each applicable adjustment shall apply only during the applicable period set forth in clause (ii)(B) of Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date2.22(a). (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is has been delivered by DEI Parent within the period set forth in this Section 1.72.22(f), the Sustainability Aggregate KPI Margin Adjustment will be positive 0.05% 5.0 basis points and the Sustainability Aggregate KPI Fee Adjustment will be positive 0.01% 1.0 basis points commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.22(f) and continuing until the day immediately prior Parent delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent in accordance with Section 2.22(f). (d) If (i)(A) a Borrower Parent or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee any KPI Adjustment or the KPI Metrics as reported in a Pricing Certificate or Annual KPI Report (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender other Bank and the BorrowersParent), or (B) the Borrowers Parent and the Lenders Banks agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee any KPI Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Parent shall be obligated to pay to the Administrative Agent Agent, for the account of the applicable LendersBanks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower Parent under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)bankruptcy code, automatically and without further action by the Administrative Agent or any LenderBank), but in any event within 10 Business Days after the Borrowers have Parent has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid by Parent for such period over (2) the amount of interest and fees actually paid by Parent for such period. If a Borrower Parent becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee KPI Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Parent of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee such KPI Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such noticenotice (the “Adjustment Date”), the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee Rate for Commitments under the DEI Sublimit Parent shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee such KPI Adjustment or the KPI Metrics, as applicable. For the avoidance of any doubt, the parties agree that any such adjustment to reflect a decrease in the Applicable Rate or the Commitment Fee Rate for any period shall only be effective on a prospective basis and shall not require any adjustments to amounts previously paid by Parent prior to the Adjustment Date. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Parent complies with the terms of this Section 1.7 2.22 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower Parent under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)bankruptcy code, (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph clause shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon the date that is 10 Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) or Event of Default and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 Business Days after such a written demand or nor shall such additional amounts accrue interest at the default rate provided in of interest applicable to overdue amounts pursuant to Section 3.1(b2.05(e) prior to the such date that is 10 Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end after April 1st of each calendar year and on or before June 30th of each calendar year (such date, the “Pricing Certificate Delivery Date”) (commencing with the calendar year ending December 31, 2021April 1st and June 30th of 2023), Parent shall deliver to the Administrative Agent (i) a Pricing Certificate for the most recently-ended calendar year may and (ii) a review report of the Sustainability Assurance Provider confirming that such assurance provider is not aware of any material modifications that should be provided by DEI as set forth made to such computations in this Section 1.7order for them to be presented in all material respects in conformity with the applicable reporting criteria; provided, that, for any calendar year the Borrowers Parent may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default default or Event event of Default default (but such failure to so deliver a Pricing Certificate by on or prior to the end of such 120-day period Pricing Certificate Delivery Date shall result in the Sustainability Aggregate KPI Margin Adjustment and Sustainability the Aggregate KPI Fee Adjustment being applied as set forth in Section 1.7(c2.22(c)). (hg) In To the event Borrowers extent the Sustainability Structuring Agent or any an Affiliate thereof ceases to be a Bank, Parent will use commercially reasonable efforts to seek to appoint another Person that is a Bank to fulfill the role of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdSustainability Structuring Agent.

Appears in 1 contract

Samples: Loan Agreement (Spire Missouri Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar fiscal year on and not more often than once in any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Margin and the Applicable Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment Adjustment, respectively, as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect the manner and at the times described in this Section 2.22. Each of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth Business Day following receipt by the Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.01(i)(vi) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and each change in the Applicable Percentages on any Margin and the Applicable Percentage resulting from a Sustainability Pricing Margin Adjustment Date and a Sustainability Fee Adjustment shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-delivery of a Pricing CertificateCertificate for the immediately following period, zero the last day such Pricing Certificates) may Certificate for such following period could have been delivered pursuant to the terms of Section 5.01(i)(vi)). If no Pricing Certificate is delivered by the Company within the period set forth in Section 5.01(i)(vi), the Sustainability Margin Adjustment will be delivered in respect an increase of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.050.04% and that the Applicable Percentage for the Facility Sustainability Fee for Commitments under the DEI Sublimit Adjustment will never be reduced or increased by more than an increase of 0.01%, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 5.01(i)(vi) and continuing until the Company delivers a Pricing Certificate to the Agent. If a Pricing Certificate is delivered by the Company within the period set forth in Section 5.01(i)(vi) but omits the requisite information with respect to any KPI Metric, the calculation of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason KPI Metric in respect of meeting one or several KPI Metrics in any calendar the applicable fiscal year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. determined in accordance with clause (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within of the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day definitions of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the ” and “Sustainability Fee Adjustment or the KPI Metrics as reported in Adjustment”. The parties hereto acknowledge and agree that failure to deliver a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Jabil Inc)

Sustainability Adjustments. (a) DEI After the Closing Date, the Borrower, at its option, in consultation with the Sustainability Structuring Agent, may deliver a Pricing Certificate establish specified key performance indicators (“KPIs”) with respect to certain environmental, social and governance (“ESG”) targets of the Borrower and its Subsidiaries. Once such KPIs are established, the Sustainability Structuring Agent and the Borrower shall furnish to the Administrative Agent a proposed amendment (or proposed terms for such amendment) to this Agreement solely for the purpose of incorporating the KPIs and other related provisions (the “ESG Pricing Provisions”) into this Agreement. Once approved by the Administrative Agent in respect of its reasonable discretion (such approval not to be unreasonably withheld), such amendment (the most recently ended calendar year on any date prior “ESG Amendment”) shall be posted to the date that is 120 days following Lenders, and shall become effective at 5:00 p.m., New York City time, on the last day Business Day on which Lenders comprising the Required Lenders shall have delivered to the Administrative Agent (who shall promptly notify the Borrower) signatures of such calendar Required Lenders to such ESG Amendment. Upon the effectiveness of any such ESG Amendment, based on the Borrower’s performance against the KPIs, certain adjustments (increase, decrease or no adjustment) (such adjustments, the “ESG Applicable Rate Adjustments”) to the otherwise applicable Applicable Commitment Fee and applicable Applicable Margin for Loans and LC Participation Fees will be made; provided that the amount of any ESG Applicable Rate Adjustments shall not result in (x) an aggregate decrease or increase at any point in time of more than 5.00 basis points in the Applicable Margin for Loans and LC Participation Fees, and the ESG Applicable Rate Adjustments to the Applicable Margin applicable to ABR Loans shall be the same amount, in basis points, as the ESG Applicable Rate Adjustments to the Applicable Margin applicable to Term Benchmark Loans and RFR Loans (provided that in no event shall the Applicable Margin be less than zero) and (y) an aggregate decrease or increase at any point in time of more than 1.00 basis point in the Applicable Commitment Fee (provided that in no event shall the Applicable Commitment Fee be less than zero) (it being understood that, for the avoidance of doubt, in each of clauses (x) and (y) above, such adjustments shall not be cumulative year (over year, and each applicable adjustment shall only apply until the date on which the Administrative Agent’s receipt thereofnext adjustment is due to take place). The ESG Applicable Rate Adjustments will be determined based on certain certificates, each a “Pricing Certificate Date”), which DEI may or may not doreports and other documents, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar yeareach case, (i) setting forth the Applicable Percentage for Borrower’s performance against the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased)KPIs, as applicable, pursuant giving due consideration to the Sustainability Margin Adjustment Linked Loan Principles (as set forth published in May 2022 by the KPI Metrics Certificate delivered with such Pricing CertificateLoan Market Association, Asia Pacific Loan Market Association and (iiLoan Syndications & Trading Association) and are to be agreed between the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment Borrower and the Sustainability Structuring Agent (each acting reasonably). Following the effectiveness of the ESG Amendment, any modification to the ESG Pricing Provisions which has the effect of reducing the Applicable Commitment Fee Adjustment in respect of such calendar year or Applicable Margin for Loans and LC Participation Fees to a level not otherwise permitted by this Section 2.25(a) shall be determined pursuant subject to Section 1.7(c). For purposes the consent of all Lenders and any other modification to the ESG Pricing Provisions shall be subject only to the consent of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment DateRequired Lenders. (b) For the avoidance of doubt, only one Pricing Certificate (or, This Section shall supersede any provisions in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant Section 9.08 to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Datecontrary. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Apollo Asset Management, Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the delivery of a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to and the date that is 120 days following publication (or delivery through an intranet website) of the last day of Annual KPI Report for such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Aggregate KPI Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing CertificateCertificate in the manner and at the times described in this Section 2.23, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Aggregate KPI Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to this Section 1.7(c)2.23. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Aggregate KPI Margin Adjustment and the Sustainability Aggregate KPI Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following the later to occur of (x) the receipt by the Administrative Agent of a Pricing Certificate Date delivered pursuant to Section 2.23(f) and (y) the date on which the Annual KPI Report for such Pricing Certificate the applicable calendar year is publicly disclosed, based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Aggregate KPI Margin Adjustment and the Sustainability Aggregate KPI Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin and the Commitment Fee Rate resulting from a Pricing Certificate and the Aggregate KPI Margin Adjustment Date and the Aggregate KPI Fee Adjustment related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.23(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% 5.0 basis points and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate will never be reduced or increased by more than 0.01%1.0 basis point, in each case pursuant to the Sustainability Aggregate KPI Margin Adjustment and or the Sustainability Aggregate KPI Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Commitment Fee Rate by reason of meeting application of one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Each applicable adjustment shall apply only during the applicable period set forth in Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date2.23(a)(ii)(B). (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is has been delivered by DEI the Borrower within the period set forth in this Section 1.72.23(f), the Sustainability Aggregate KPI Margin Adjustment will be positive 0.05% 5.0 basis points and the Sustainability Aggregate KPI Fee Adjustment will be positive 0.01% 1.0 basis point commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.23(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a an Authorized Officer of the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee any KPI Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 five (5) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each other Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee any KPI Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent Agent, for the account of the applicable Lenders (including, without limitation, the Swingline Lenders), as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid by the Borrower for such period over (2) the amount of interest and fees actually paid by the Borrower for such period. If a an Authorized Officer of the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee KPI Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee such KPI Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee such KPI Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; , provided, that, that the Borrowers comply Borrower complies with the terms of this Section 1.7 2.23 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Law, (ai) any additional amounts required to be paid pursuant the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) or Event of Default and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or nor shall such additional amounts accrue interest at the rate provided in pursuant to Section 3.1(b2.13(b) prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) No later than five (5) Business Days following the publication of the Annual KPI Report for any calendar year (commencing with the Annual KPI Report for the calendar year ending December 31, 2021), and in any event no earlier than April 1st and no later than June 30th of each calendar year (such date, the “Pricing Certificate Delivery Date”) (commencing with June 30, 2022), the Borrower shall deliver to the Administrative Agent a Pricing Certificate for the most recently-ended calendar year; provided, that, (i) such Pricing Certificate may be marked “confidential” and may be delivered to the Administrative Agent on, prior to, or after the date on which the Annual KPI Report is publicly disclosed (provided, that, for the avoidance of doubt, the Administrative Agent shall be permitted to share the Pricing Certificate with the Lenders) and (ii) for any calendar year the Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate on or prior to the Pricing Certificate Delivery Date shall result in the Aggregate KPI Margin Adjustment and the Aggregate KPI Fee Adjustment being applied as set forth in Section 2.23(c)). (g) Each party hereto hereby agrees that neither the Administrative Agent nor the any Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee KPI Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent Agents may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In To the event Borrowers or any extent that each of their Subsidiaries acquire or divest the Co-Sustainability Structuring Agents ceases to be a business, facility or Subsidiary with Capacity in excess of 100MWLender, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold Borrower will use commercially reasonable efforts to seek to appoint one or more other Persons (each of which shall be adjusted a Lender) to account for such acquisition or divestiture such that fulfill the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in role of a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7Co-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdSustainability Structuring Agent.

Appears in 1 contract

Samples: Credit Agreement (Tucson Electric Power Co)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar yearFiscal Year, (i) the Applicable Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate manner and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date shall be effective during the period commencing on and including such Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date.at the (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearFiscal Year. It is further understood and agreed that any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Rate Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee AdjustmentPercentage, respectively, on any resulting therefrom shall be reset to “zero ” following the conclusion of such Applicable Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Company within the period set forth in this Section 1.74.17(i), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% (such positive rates, collectively, the “Threshold Adjustment”) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 4.17(i) and continuing until the day immediately prior Company delivers a Pricing Certificate to the next Administrative Agent. In the event no Pricing Certificate is delivered for a Fiscal Year by June 15th of such year, the Sustainability Pricing Rate Adjustment Dateand Sustainability Fee Adjustment for such Fiscal Year shall be the Threshold Adjustment. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, was a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed to be not materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 4.17(d), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Company complies with the terms of this Section 1.7 4.17(e) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand.any (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-any Sustainability Structuring Agent shall have any (i) responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate or (and ii) right to review, audit or otherwise evaluate any calculation by the Company of any Sustainability Fee Adjustment or any Sustainability Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). In addition, the Company shall have no obligation to disclose any further data, computations or other information to the Administrative Agent, any Sustainability Structuring Agent or any Lender with respect to any KPI Metric, Sustainability Target or Sustainability Threshold. (g) As soon as available and in To the extent any event within 120 days following occurs (which would include, without limitation, a material disposition or material acquisition) which, in the end opinion of each calendar year the Company and the Sustainability Structuring Agents, acting reasonably, means that one or more of the Sustainability Targets or Sustainability Thresholds set forth in the Sustainability Table is no longer applicable given changes in the Company’s structure, then the Company and the Sustainability Structuring Agents will report to the Lenders that such Sustainability Targets and Sustainability Thresholds will no longer apply. In such a scenario, the Company will then cease to refer to the applicable KPI Metrics, Sustainability Targets and Sustainability Thresholders in the Pricing Certificate for such period. (commencing with h) To the calendar year ending December 31extent a Sustainability Structuring Agent ceases to be a Lender, 2021), the Company shall use commercially reasonable efforts to seek to appoint another Person that is a Lender to fulfill the role such Sustainability Structuring Agent. (i) The Company shall use commercially reasonable efforts to deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar year may be Fiscal Year (commencing with delivery in 2022 for the Fiscal Year ended in 2021) within thirty (30) days of the release of the annual SASB Aligned Report (but in no event earlier than April 1st of any Fiscal Year); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year unless the Borrowers may elect Company elects not to deliver a Pricing CertificateCertificate for such Fiscal Year, such Pricing Certificate shall be delivered no later than June 15th of any Fiscal Year. Any such election shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Company to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)4.17(c) above. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Five Year Revolving Credit Agreement (BlackRock Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Sustainability Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to Fiscal Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofFiscal Year ending December 31, each a “Pricing Certificate Date”)2022, which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage Margin for SOFR Loans in basis points and the Revolving Applicable Margin for ABR Loans incurred by DEI in basis points otherwise then applicable in accordance with the pricing grid set forth in the definition of Applicable Margin in Section 1.1 each shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Pricing Administrative Agent of a Sustainability Certificate Date for such Pricing Certificate delivered pursuant to Section 8.01(u) based upon the KPI Metrics for such calendar year Sustainability Linked Performance Targets set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate and the calculations of the Sustainability Applicable Margin Adjustment for SOFR Rate Loans in basis points and the Sustainability Fee Adjustment Applicable Margin for ABR Loans in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daybasis points, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Margin for SOFR Loans in basis points and the Applicable Margin for ABR Loans in basis points resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Sustainability Certificate, the last day such Sustainability Certificate could have been delivered pursuant to the terms of Section 8.01(u)). (b) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearFiscal Year. It is further understood and agreed that the Applicable Percentage Margin for Revolving SOFR Loans incurred by DEI in basis points and the Applicable Margin for ABR Loans in basis points will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%5 basis points, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment DateFiscal Year. For the avoidance of doubt, any adjustment to the Applicable Percentages Margin for such Revolving SOFR Loans or such Facility Fee in basis points and the Applicable Margin for ABR Loans in basis points by reason of meeting one or several KPI Metrics Sustainability Linked Performance Targets in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date.[***] (d) If (i)(A) a the Borrower or any Lender the Lead Sustainability Structuring Agent becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Rate Adjustment or the KPI Metrics Sustainability Linked Performance Targets as reported in a Pricing Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) and, in the case of any Lenderthe Lead Sustainability Structuring Agent, such Lender Lead Sustainability Structuring Agent delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders Lead Sustainability Structuring Agent agree that there was a Pricing Sustainability Certificate Inaccuracy at the time of delivery of a Pricing Sustainability Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics Sustainability Linked Performance Targets would have resulted in an increase in the Applicable Percentages Margin for SOFR Loans in basis points and/or the Revolving Applicable Margin for ABR Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit in basis points for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender)Agent, but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if period and (iii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics Sustainability Linked Performance Targets would have resulted in a decrease in the Applicable Percentages Margin for SOFR Loans in basis points and/or the Revolving Applicable Margin for ABR Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit in basis points for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice Borrower shall include corrections receive a credit against subsequent interest payable in an amount equal to the calculations excess of (1) the Sustainability Margin Adjustment, Sustainability Fee Adjustment or amount of interest actually paid for such period over (2) the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent amount of interest that should have been paid for such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicableperiod. (e) It is understood and agreed that Notwithstanding anything set out in this Agreement to the contrary, none of: (i) the failure of the Borrower to publish or deliver a Sustainability Report or to deliver a Sustainability Certificate, respectively, or any Pricing Sustainability Certificate Inaccuracy in any of the foregoing, or (ii) or the failure of the Borrower to meet or satisfy any Sustainability Linked Performance Target set out in the “Sustainability Rate Adjustment” definition, shall not constitute be, or deemed to be, a Default or an Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent, the Lead Sustainability Structuring Agent nor and the Co-Sustainability Structuring Agent shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Sustainability Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver Notwithstanding anything to the Administrative Agent and the Lenders a certificate that contrary contained herein, if (i) calculates in reasonable detail a Significant Sustainability Event, a restatement of Scope 1 Emissions and Scope 2 Emissions factors, or any other extraordinary event beyond the Borrower’s control occurs (each, a “Triggering Event”) then (A) the Borrower or Lead Sustainability Structuring Agent shall provide prompt written notice to the other party and (B) the Borrower and the Lead Sustainability Structuring Agent (acting on a Majority Lenders consent) will update the applicable Sustainability Linked Performance Targets no later than 1 year following the occurrence of any such adjusted Renewable Energy Generation Capacity Percentage Target Triggering Event. If the Borrower and Renewable Energy Generation Capacity Percentage Threshold and the Lead Sustainability Structuring Agent are unable to agree on the updated Sustainability Linked Performance Targets, the Applicable Margin shall apply without any increase or decrease due to the Sustainability Rate Adjustment for the impacted Sustainability Linked Performance Targets or (ii) restates Exhibit 1.7-1 a Material Transaction occurs and the [***] of the Borrower in connection with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected Material Transaction would reasonably be expected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days increase or decrease by 5% or more at the consummation of such deliveryMaterial Transaction then (A) the Borrower or Lead Sustainability Structuring Agent shall provide prompt written notice to the other party, then Exhibit 1.7-(B) the Borrower may elect to exclude the impact of such Material Transaction on the Sustainability Linked Performance Targets for a period not exceeding 1 year, and (C) the Borrower and the Lead Sustainability Structuring Agent (acting on a Majority Lenders consent) will update the applicable Sustainability Linked Performance Targets no later than 1 year following the occurrence of any such Material Transaction. If the Borrower and the Lead Sustainability Structuring Agent (acting on the request of the Majority Lenders) are unable to agree on the updated Sustainability Linked Performance Targets, the Applicable Margin shall be deemed amended apply without any increase or decrease due to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdthe Sustainability Rate Adjustment for the impacted Sustainability Linked Performance Targets.

Appears in 1 contract

Samples: Revolving Credit Agreement (Diversified Energy Co PLC)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Sustainability Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to Fiscal Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofFiscal Year ending December 31, each a “Pricing Certificate Date”)2022, which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage Margin for SOFR Loans in basis points and the Revolving Applicable Margin for ABR Loans incurred by DEI in basis points otherwise then applicable in accordance with the pricing grid set forth in the definition of Applicable Margin in Section 1.1 each shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Pricing Administrative Agent of a Sustainability Certificate Date for such Pricing Certificate delivered pursuant to Section 8.01(u) based upon the KPI Metrics for such calendar year Sustainability Linked Performance Targets set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate and the calculations of the Sustainability Applicable Margin Adjustment for SOFR Rate Loans in basis points and the Sustainability Fee Adjustment Applicable Margin for ABR Loans in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daybasis points, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Margin for SOFR Loans in basis points and the Applicable Margin for ABR Loans in basis points resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Sustainability Certificate, the last day such Sustainability Certificate could have been delivered pursuant to the terms of Section 8.01(u)). (b) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearFiscal Year. It is further understood and agreed that the Applicable Percentage Margin for Revolving SOFR Loans incurred by DEI in basis points and the Applicable Margin for ABR Loans in basis points will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%5 basis points, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment DateFiscal Year. For the avoidance of doubt, any adjustment to the Applicable Percentages Margin for such Revolving SOFR Loans or such Facility Fee in basis points and the Applicable Margin for ABR Loans in basis points by reason of meeting one or several KPI Metrics Sustainability Linked Performance Targets in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior to the next Sustainability Pricing Adjustment Date.[***] (d) If (i)(A) a the Borrower or any Lender the Lead Sustainability Structuring Agent becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Rate Adjustment or the KPI Metrics Sustainability Linked Performance Targets as reported in a Pricing Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) and, in the case of any Lenderthe Lead Sustainability Structuring Agent, such Lender Lead Sustainability Structuring Agent delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders Lead Sustainability Structuring Agent agree that there was a Pricing Sustainability Certificate Inaccuracy at the time of delivery of a Pricing Sustainability Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics Sustainability Linked Performance Targets would have resulted in an increase in the Applicable Percentages Margin for SOFR Loans in basis points and/or the Revolving Applicable Margin for ABR Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit in basis points for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender)Agent, but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if period and (iii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics Sustainability Linked Performance Targets would have resulted in a decrease in the Applicable Percentages Margin for SOFR Loans in basis points and/or the Revolving Applicable Margin for ABR Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit in basis points for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice Borrower shall include corrections receive a credit against subsequent interest payable in an amount equal to the calculations excess of (1) the Sustainability Margin Adjustment, Sustainability Fee Adjustment or amount of interest actually paid for such period over (2) the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent amount of interest that should have been paid for such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicableperiod. (e) It is understood and agreed that Notwithstanding anything set out in this Agreement to the contrary, none of: (i) the failure of the Borrower to publish or deliver a Sustainability Report or to deliver a Sustainability Certificate, respectively, or any Pricing Sustainability Certificate Inaccuracy in any of the foregoing, or (ii) or the failure of the Borrower to meet or satisfy any Sustainability Linked Performance Target set out in the “Sustainability Rate Adjustment” definition, shall not constitute be, or deemed to be, a Default or an Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent, the Lead Sustainability Structuring Agent nor and the Co-Sustainability Structuring Agent shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Sustainability Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver Notwithstanding anything to the Administrative Agent and the Lenders a certificate that contrary contained herein, if (i) calculates in reasonable detail a Significant Sustainability Event, a restatement of Scope 1 Emissions and Scope 2 Emissions factors, or any other extraordinary event beyond the Borrower’s control occurs (each, a “Triggering Event”) then (A) the Borrower or Lead Sustainability Structuring Agent shall provide prompt written notice to the other party and (B) the Borrower and the Lead Sustainability Structuring Agent (acting on a Majority Lenders consent) will update the applicable Sustainability Linked Performance Targets no later than 1 year following the occurrence of any such adjusted Renewable Energy Generation Capacity Percentage Target Triggering Event. If the Borrower and Renewable Energy Generation Capacity Percentage Threshold and the Lead Sustainability Structuring Agent are unable to agree on the updated Sustainability Linked Performance Targets, the Applicable Margin shall apply without any increase or decrease due to the Sustainability Rate Adjustment for the impacted Sustainability Linked Performance Targets or (ii) restates Exhibit 1.7-1 a Material Transaction occurs and the GHG Emissions Intensity of the Borrower in connection with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected Material Transaction would reasonably be expected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days increase or decrease by 5% or more at the consummation of such deliveryMaterial Transaction then (A) the Borrower or Lead Sustainability Structuring Agent shall provide prompt written notice to the other party, then Exhibit 1.7-(B) the Borrower may elect to exclude the impact of such Material Transaction on the Sustainability Linked Performance Targets for a period not exceeding 1 year, and (C) the Borrower and the Lead Sustainability Structuring Agent (acting on a Majority Lenders consent) will update the applicable Sustainability Linked Performance Targets no later than 1 year following the occurrence of any such Material Transaction. If the Borrower and the Lead Sustainability Structuring Agent (acting on the request of the Majority Lenders) are unable to agree on the updated Sustainability Linked Performance Targets, the Applicable Margin shall be deemed amended apply without any increase or decrease due to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdthe Sustainability Rate Adjustment for the impacted Sustainability Linked Performance Targets.

Appears in 1 contract

Samples: Revolving Credit Agreement (Diversified Energy Co PLC)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreasednot adjusted), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Banking Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.08(f) based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.08(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several the KPI Metrics Metric in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI Borrower within the period set forth in this Section 1.71.08(f), the no Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 1.08(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 Business Banking Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders Banks agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics Metric would have resulted in an increase in no adjustment to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersBanks or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Bank or any LenderL/C Issuer), but in any event within 10 Business Banking Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics Metric would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI MetricsMetric, as applicable), commencing on the Business Banking Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI MetricsMetric, as applicable. (e) . It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any letter of credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.08(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 20212022), Borrower may deliver a Pricing Certificate to the Administrative Agent (and the Administrative Agent shall promptly provide a copy to each Bank) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7year; provided, that, for any calendar year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c1.08(c). (h) ). In the event Borrowers or any Borrower’s fiscal year is changed to a non-calendar year fiscal year, Borrower will be permitted to adjust the timing of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess delivery of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdPricing Certificate at its election.

Appears in 1 contract

Samples: Revolving Credit Agreement (Vornado Realty Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing CertificateCertificate in the manner and at the times described in this Section 2.20, and (ii) the Applicable Percentage for the Facility Revolver Commitment Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to this Section 1.7(c)2.20. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.02(f) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daycalculations, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Rate and the Revolver Commitment Fee resulting from a Pricing Certificate and the Sustainability Pricing Rate Adjustment Date and Sustainability Fee Adjustment related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 6.02(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Revolver Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, in each case pursuant to the Sustainability Margin Rate Adjustment and or the Sustainability Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datefiscal year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Rate or such Facility Revolver Commitment Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Company within the period set forth in this Section 1.76.02(f), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 6.02(f) and continuing until the day immediately prior Company delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Revolver Commitment Fee for Commitments under the DEI Sublimit for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Revolver Commitment Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Revolver Commitment Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed to be not materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 2.20(d), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time that such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Company complies with the terms of this Section 1.7 2.20(e) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent any sustainability coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in To the extent any event within 120 days following the end of each calendar year occurs (commencing with the calendar year ending December 31which would include, 2021)without limitation, a material disposition or material acquisition) which, in the opinion of the Company and the Sustainability Coordinator, acting reasonably, means that one or more of the KPI Metrics is no longer appropriate, then the Company and the Sustainability Coordinator will report to the Lenders that such KPI Metric will no longer apply. In such a scenario, the Company will then cease to refer to the applicable KPI Metrics in the Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c)period. (h) In To the event Borrowers or any of their Subsidiaries acquire or divest extent the Sustainability Coordinator ceases to be a business, facility or Subsidiary with Capacity in excess of 100MWLender, the Renewable Energy Generation Capacity Percentage Target and Company will use commercially reasonable efforts to seek to appoint another Person that is a Lender to fulfill the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days role of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdSustainability Coordinator.

Appears in 1 contract

Samples: Credit Agreement (Aecom)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage Rate described under the headings “Applicable Rate for LIBOR Loans” and “Applicable Rate for ABR Loans” in the Revolving Loans incurred by DEI definition of “Applicable Rate” shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the Facility Fee for Commitments Rate described under the DEI Sublimit heading “Applicable Rate for Revolving Facility Commitment Fee” in the definition of “Applicable Rate” shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics the Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to paragraph (f) of this Section 2.23 based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date (or, in the case of non-delivery of a Pricing Certificate, zero the last day such Pricing Certificates) may be Certificate could have been delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Dateterms of paragraph (f) of this Section 2.23). For the avoidance of doubt, any adjustment changes to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments Rate pursuant to this Section made on 2.23 in respect of any Sustainability Pricing Adjustment Date Class of Loans and Commitments shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing cease on the last day earlier of (x) the Maturity Date in respect of such period Class of Loans and continuing until Commitments and (y) December 31, 2026 (unless otherwise agreed by the day immediately prior to the next Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in pursuant to an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent amendment effected in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry9.02). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Crown Castle International Corp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar yearFiscal Year, (i) the Applicable Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 4.17 (but in no event shall any adjustment result in the Applicable Rate Percentage being less than 0.00%) and (ii) the Applicable Commitment Fee Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability times described in this Section 4.17 (but in no event shall any adjustment result in the Applicable Commitment Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cPercentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall not be applicable for the relevant Fiscal Year unless (i) at least two of the three KPI Metrics are equal to or more than the applicable Sustainability Target set forth in the Sustainability Table and no KPI Metric is less than the applicable Sustainability Threshold set forth in the Sustainability Table or (ii) at least two of the three KPI Metrics are less than the applicable Sustainability Threshold set forth in the Sustainability Table and no KPI Metric is equal to or more than the applicable Sustainability Target set forth in the Sustainability Table, (B) each of the Sustainability Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 4.17(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment, as applicable, therein (such day, the “Sustainability Pricing Adjustment Date”) and (C) each change in the Applicable Rate Percentage and the Applicable Commitment Fee Percentage resulting from a Pricing Certificate and the Sustainability Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 4.17(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearFiscal Year. It is further understood and agreed that any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Rate Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee AdjustmentPercentage, respectively, on any resulting therefrom shall be reset to “zero” following the conclusion of such Applicable Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Company within the period set forth in this Section 1.74.17(i), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% (such positive rates, collectively, the “Threshold Adjustment”) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 4.17(i) and continuing until the day immediately prior Company delivers a Pricing Certificate to the next Administrative Agent. In the event no Pricing Certificate is delivered for a Fiscal Year by June 15th of such year, the Sustainability Pricing Rate Adjustment Dateand Sustainability Fee Adjustment for such Fiscal Year shall be the Threshold Adjustment. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, was a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed to be not materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 4.17(d), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Company complies with the terms of this thisthe foregoing Section 1.7 4.17(ed) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the default rate provided in Section 3.1(b) prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-any Sustainability Structuring Agent shall have any (i) responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate or (and ii) right to review, audit or otherwise evaluate any calculation by the Company of any Sustainability Fee Adjustment or any Sustainability Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). In addition, the Company shall have no obligation to disclose any further data, computations or other information to the Administrative Agent, any Sustainability Structuring Agent or any Lender with respect to any KPI Metric, Sustainability Target or Sustainability Threshold. (g) As soon as available and in To the extent any event within 120 days following occurs (which would include, without limitation, a material disposition or material acquisition) which, in the end opinion of each calendar year the Company and the Sustainability Structuring Agents, acting reasonably, means that one or more of the Sustainability Targets or Sustainability Thresholds set forth in the Sustainability Table is no longer applicable given changes in the Company’s structure, then the Company and the Sustainability Structuring Agents will report to the Lenders that such Sustainability Targets and Sustainability Thresholds will no longer apply. In such a scenario, the Company will then cease to refer to the applicable KPI Metrics, Sustainability Targets and Sustainability Thresholders in the Pricing Certificate for such period. (commencing with h) To the calendar year ending December 31extent a Sustainability Structuring Agent ceases to be a Lender, 2021), the Company shall use commercially reasonable efforts to seek to appoint another Person that is a Lender to fulfill the role such Sustainability Structuring Agent. (i) The Company shall use commercially reasonable efforts to deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar year may be Fiscal Year (commencing with delivery in 2022 for the Fiscal Year ended in 2021) within thirty (30) days of the release of the annual SASB Aligned Report (but in no event earlier than April 1st of any Fiscal Year); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year unless the Borrowers may elect Company elects not to deliver a Pricing CertificateCertificate for such Fiscal Year, such Pricing Certificate shall be delivered no later than June 15th of any Fiscal Year. Any such election shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Company to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)4.17(c) above. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Five Year Revolving Credit Agreement (BlackRock Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to (beginning with the date that is 120 days following the last day delivery of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI calendar year 2022), the Base Rate Margin and SOFR Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment shall be determined applied as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.1(j) based upon the KPI Metrics for such calendar year and performance of the Sustainability Performance Targets set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Rate Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages Base Rate Margin and the SOFR Margin resulting from a Pricing Certificate shall be effective commencing on any and including the applicable Sustainability Pricing Adjustment Date shall be effective during (or, in the period commencing on and including case of non-delivery of a Pricing Certificate, the last day such Sustainability Pricing Adjustment Date and ending on Certificate could have been delivered pursuant to the date immediately preceding the next Sustainability Pricing Adjustment Dateterms of Section 5.1(j)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Base Rate Margin and the SOFR Margin will never be reduced or increased by more than 0.05% and that relative to the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%unadjusted SOFR Margin, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Base Rate Margin or such Facility Fee the SOFR Margin by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant ; provided that, (i) if the SOFR Margin is reduced relative to the unadjusted SOFR Margin, in any year, it may be increased in a subsequent year by non-performance of the Sustainability Performance Targets and (ii) if the SOFR Margin is increased relative to the unadjusted SOFR Margin, in any year, it may be decreased in a subsequent year by performance of the Sustainability Performance Targets, but, in each case, subject to the limitations of the second sentence of this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Dateparagraph (b). (c) It is hereby understood and agreed that if no such that, subject to the limitations of the second sentence in paragraph (b) above, in the event the Borrower fails to timely deliver a Pricing Certificate in accordance with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.75.1(j), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% %, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 5.1(j) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Administrative Agent for such Sustainability Pricing Adjustment Date. (d) If (i)(A) a Borrower the Administrative Agent or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Rate Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in and the case of any Lender, Administrative Agent or such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Borrower (and with respect to knowledge of such Lender, the Administrative Agent Agent) describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower becomes aware of a Pricing Certificate Inaccuracy and the Lenders Borrower and the Administrative Agent shall mutually agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for Base Rate Margin or the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit SOFR Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or in connection with any comparable event under non-U.S. debtor relief lawsother Bankruptcy Event), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for Base Rate Margin or the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit SOFR Margin for any period, thenthen the Borrower shall receive a credit against subsequent interest payable on the Loans or fees payable pursuant to Section 2.12, upon receipt by in an amount equal to the Administrative Agent excess of (1) the amount of interest and fees actually paid for such period over (2) the amount of interest and fees that should have been paid for such period (for the avoidance of doubt, with respect to any Lender, such credit shall apply to amounts of interest and fees which have accrued from and after delivery of the notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections pursuant to the calculations Section 5.1(k) regardless of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or time period to which the KPI Metrics, as applicable)Pricing Certificate Inaccuracy relates which may be a period before such Person was a Lender hereunder) and, commencing on the fifth (5th) Business Day following receipt by the Administrative Agent of such noticethe applicable corrections to the Sustainability Rate Adjustment or the KPI Metrics, as the case may be, pursuant to Section 5.1(k), the Applicable Percentages for Base Rate Margin or the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit SOFR Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.23(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or in connection with any comparable event under non-U.S. debtor relief lawsother Bankruptcy Event), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph to Section 2.23(d) shall not be due and payable until the date that is 10 Business Days after earlier to occur of (i) a written demand is made for such payment by the Administrative Agent in accordance with Section 2.23(d) or (ii) ten (10) Business Days after the Borrower has received written notice of, or has agreed in writing that there was, a Pricing Certificate Inaccuracy (such paragraphdate, the “Certificate Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Agent nor and the Co-Sustainability Structuring Agent Advisor shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Kinetik Holdings Inc.)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to Effective as of the fifth Business Day following receipt by the Administrative Agent of a Sustainability Certificate delivered pursuant to Section 1.09(e) (such day, the “Sustainability Pricing Adjustment Date”) in respect of the most recently ended calendar year on any date prior to Reference Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year ending July 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2024, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Rate and the Commitment Fee resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) In the event the Borrower does not deliver a Sustainability Certificate within the period set forth in Section 1.09(e) or any Sustainability Certificate shall be incomplete and fail to satisfy the requirements set forth in the definition of "Sustainability Certificate" (including the failure to set forth the Sustainability Rate Adjustment and the Sustainability Commitment Fee Adjustment and calculations in reasonable detail of the KPI Metrics, in each case, for the applicable Reference Year), the Sustainability Rate Adjustment will be positive 0.05% and the Sustainability Commitment Fee Adjustment will be positive 0.01% commencing on the fifth Business Day following the last day such Sustainability Certificate should have been delivered pursuant to the terms of Section 1.09(e) and continuing until the fifth Business Day following receipt by the Administrative Agent of a complete Sustainability Certificate for such Reference Year. (c) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar Reference Year and any adjustment to the Applicable Rate or the Commitment Fee by reference to any of the KPI Metrics in any year shall not be cumulative year-over-year. Each applicable adjustment shall only apply until the date on which the next adjustment is to occur. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment, respectively, on during any Reference Year; provided that, and notwithstanding anything to the contrary in this Agreement (including any provision of Section 9.02 requiring the consent of “each Lender directly affected thereby” for reductions in interest rates or fees), the definitions of KPI 1, KPI 2, Reference Year, Sustainability Pricing Rate Adjustment Date. For (and the definitions of the components thereof), Sustainability Metric Auditor and Sustainability Report, and the Sustainability Table may be amended or otherwise modified with the consent of the Borrower, the Administrative Agent and the Required Lenders; provided, however, for the avoidance of doubt, any adjustment changes to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments Rate pursuant to this Section made on any Sustainability Pricing Rate Adjustment Date shall only apply for and the period until Commitment Fee pursuant to the date immediately preceding Sustainability Commitment Fee Adjustment in excess of the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period amounts set forth in this Section 1.7, the Sustainability Margin Adjustment will above shall be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior subject to the next Sustainability Pricing Adjustment Dateconsent of “each Lender directly affected thereby” in accordance with Section 9.02. (d) If (i)(A) a Borrower or any Lender the Administrative Agent becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) andand the Administrative Agent notifies the Borrower thereof, in the case or (B) any Lender becomes aware of any Lender, Sustainability Certificate Inaccuracy and such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, delivers a written notice to the Administrative Agent and the Borrower describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (BC) the Borrowers and the Lenders agree that there was Borrower becomes aware of a Pricing Sustainability Certificate Inaccuracy at and delivers notice thereof to the time of delivery of a Pricing CertificateAdministrative Agent, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in no adjustment or an increase in the Applicable Percentages Rate or Commitment Fee for any applicable period, (x) commencing on the Revolving Loans incurred by DEI fifth Business Day following delivery of a corrected Sustainability Certificate to the Administrative Agent, the Applicable Rate and Commitment Fee shall be adjusted (if required) to reflect such corrected calculations of the Sustainability Rate Adjustment and the Facility Sustainability Commitment Fee for Commitments under Adjustment and (y) the DEI Sublimit for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have agreed in writing has determined that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.09(d) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (ax) any additional amounts required to be paid pursuant the immediate preceding to this paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (I) a written demand is made for such payment by the Administrative Agent in accordance with this paragraph or (II) 10 Business Days after the Borrower has received written notice of, or has determined that there was, a Sustainability Certificate Inaccuracy (such paragraphearlier date, the “Certificate Inaccuracy Payment Date”), (by) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (cz) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the default rate provided in pursuant to Section 3.1(b2.10(b) prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (ge) As soon as available and in any event within 120 180 days following after the end Borrower files its Annual Report on Form 10-K for the fiscal year of each calendar year the Borrower (commencing with the calendar Borrower’s Annual Report on Form 10-K for the fiscal year ending December July 31, 20212024), the Borrower shall deliver to the Administrative Agent and the Lenders, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders, a Pricing Sustainability Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Sustainability Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 120180-day period shall result in the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment being applied as set forth in Section 1.7(c1.09(b)). (hf) In If, after the event Borrowers or date hereof, there occurs any of their Subsidiaries acquire or divest a businessSustainability Recalculation Event, facility or Subsidiary with Capacity in excess of 100MW, and either (i) the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to Borrower notifies the Administrative Agent and in writing that the Lenders a certificate that (i) calculates in reasonable detail Borrower requests an amendment to any provision hereof to eliminate, accommodate or otherwise take into account the effect of such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and Sustainability Recalculation Event, or (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting the Administrative Agent notifies the Borrower that the Required Lenders have not objected request an amendment to any provision or provisions hereof for such adjusted Renewable Energy Generation Capacity Percentage Target purpose (it being understood and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days agreed that any such notice may be given before or after such Sustainability Recalculation Event has occurred), then (A) the Borrower and the Administrative Agent shall negotiate in good faith to amend the provisions hereof to eliminate, accommodate or otherwise take into account the effect of such deliverySustainability Recalculation Event for the period from and after the occurrence of such Sustainability Recalculation Event, then Exhibit 1.7-1 and (B) the provisions of this Agreement shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.interpreted on the basis of

Appears in 1 contract

Samples: Credit Agreement (Palo Alto Networks Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Sustainability Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofyear, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for Margin and the Revolving Loans incurred by DEI Facility Fee, if applicable, shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Applicable Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Sustainability Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Sustainability Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to this Section 1.7(c)1.17. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Applicable Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Pricing Administrative Agent of a Sustainability Certificate Date for such Pricing Certificate delivered pursuant to Section 8.5(q) based upon the KPI Metrics for such calendar year set forth in such Sustainability Certificate for the KPI Metrics Certificate delivered most recently ended calendar year (commencing with such Pricing Certificate the calendar year ending December 31, 2022) and the calculations of the Sustainability Applicable Margin Adjustment and the Sustainability Facility Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Margin and Facility Fee resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Sustainability Certificate for the immediately following period, the last day such Sustainability Certificate for such following period could have been delivered pursuant to the terms of Section 8.5(q). (b) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin and Facility Fee will never be reduced or increased by more than 0.050.02% per annum and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%0.005% per annum, respectively, pursuant to the Sustainability Applicable Margin Adjustment and the Sustainability Facility Fee Adjustment, respectively, on Adjustment during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Fee by reason of meeting one or several both KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Sustainability Certificate with respect to a for any calendar year is delivered by DEI within the period set forth in this Borrower by the time required pursuant to Section 1.78.5(q), the Sustainability Applicable Margin Adjustment will be positive 0.05% and the Sustainability Facility Fee Adjustment will be positive 0.010.02% per annum and positive 0.005%, respectively, commencing on the last day by which such Sustainability Certificate was required to have been delivered pursuant to the terms of such period Section 8.5(q) and continuing until the day immediately prior fifth (5th) Business Day after the Borrower delivers a Sustainability Certificate to the next Administrative Agent; provided that, if the Borrower determines in good faith that it is not possible to calculate a KPI Metric for any calendar year for whatever reason (the “Specified KPI Metric”), the Sustainability Pricing Structuring Agent and the Borrower will negotiate in good faith to agree on the selection of an alternative measure that is customarily applied by Persons carrying out similar businesses or being subject to similar incentives in lieu of the Specified KPI Metric (the “Alternative KPI Metric”). If after twenty (20) Business Days from the day on which the Borrower was originally due to deliver a Sustainability Certificate in accordance with Section 8.5(q), the Borrower and the Sustainability Structuring Agent (acting on behalf of Required Lenders) agree on the selection of an Alternative KPI Metric, then the Sustainability Applicable Margin Adjustment Dateand Sustainability Facility Fee Adjustment shall be calculated based on such Alternative KPI Metric and the other KPI Metrics, excluding the Specified KPI Metric. If the Borrower and the Sustainability Structuring Agent do not agree on the selection of an Alternative KPI Metric, then the Sustainability Applicable Margin Adjustment and Sustainability Facility Fee Adjustment shall be calculated based on the KPI Metrics, excluding the Specified KPI Metric. In each case, the Sustainability Certificate shall be deemed to be updated to delete the Specified KPI Metric and include the Alternative KPI Metric, if applicable. In addition, if a Recalculation Event has occurred, then, within the twelve (12) month period following such Recalculation Event, the Borrower or the Sustainability Structuring Agent may notify such other party in writing that it has determined, in good faith, that a KPI Metric or any element of any table set out in the definitions of the terms “Employee Sustainability Training Metric” or “GRESB Metric” or any of the information set out in the Sustainability Table should be adjusted on account of such Recalculation Event. (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Applicable Margin Adjustment, the Sustainability Facility Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be promptly shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Sustainability Certificate Inaccuracy at the time of delivery of a Pricing Sustainability Certificate, and (ii) a proper calculation of the Sustainability Applicable Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics would have resulted in both an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Facility Fee for Commitments under any applicable period and an increase in the DEI Sublimit amount of interest payable by the Borrower for any such applicable period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on following written demand by the Administrative Agent (or, after the occurrence of an actual Event of Default under Section 8.1(f) or deemed entry of an order for relief (g) with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Borrower, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a the Borrower becomes aware of any Pricing Sustainability Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Applicable Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Sustainability Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Applicable Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics, as applicable, and shall be promptly shared with each Lender), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Applicable Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, Default unless (i) such Sustainability Certificate Inaccuracy would have resulted in an increase in the Borrowers comply Applicable Margin and Facility Fee for such period and (ii) the Borrower fails to make a payment with respect to such increase as required by the foregoing terms of this Section 1.7 1.17(d) with respect to such Pricing Sustainability Certificate InaccuracyInaccuracy following demand for payment by the Administrative Agent made in accordance with the foregoing terms of this Section 1.17(d). Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual Event of Default under Section 8.1(f) or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsg), (a) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by the Administrative Agent shall not constitute a Default or Event of Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that none of the Administrative Agent, the Sustainability Structuring Agent or any Arranger, acting in such capacities make any assurances as to (i) whether this Agreement meets any criteria or expectations of the Borrower or any Lender with regard to environmental impact and sustainability performance, or (ii) whether the characteristics of the relevant sustainability performance targets and/or key performance indicators included in the Agreement, including any environmental and sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-linked credit facilities. Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Applicable Margin Adjustment or Sustainability Facility Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Sustainability Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). The Sustainability Structuring Agent shall have the same immunities, indemnities and exclusions from liability as are prescribed in favor of the Administrative Agent in this Agreement, which shall apply mutatis mutandis. (gf) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or If an Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in has occurred and is continuing, the Sustainability Applicable Margin Adjustment and or Sustainability Facility Fee Adjustment being applied as set forth in Section 1.7(c)shall not apply to effect a reduction of the Applicable Margin and Facility Fee, respectively. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Whitestone REIT)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar fiscal year (commencing with the date the Administrative Agent’s receipt thereoffiscal year ending October 2, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2022, (i) the Applicable Interest Rate Percentage for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and at the times described in this Section 2.18 (but in no event shall any adjustment result in the Applicable Interest Rate Percentage being less than 0.00%) and (ii) the Applicable Commitment Fee Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability times described in this Section 2.18 (but in no event shall any adjustment result in the Applicable Commitment Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(cPercentage being less than 0.00%). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 2.18(i) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment, as applicable, therein (such day, the “Sustainability Pricing Adjustment Date”) and (B) each change in the Applicable Interest Rate Percentage and the Applicable Commitment Fee Percentage resulting from a Pricing Certificate and the Sustainability Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Pricing Adjustment Date related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 2.18(i)) (any such period, an “Applicable Sustainability Pricing Adjustment Period”). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearfiscal year of the Company. It is further understood and agreed that any Sustainability Rate Adjustment or Sustainability Fee Adjustment made for any Applicable Sustainability Pricing Adjustment Period shall only be applicable for such Applicable Sustainability Pricing Adjustment Period and any increases or reductions to the Applicable Interest Rate Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee AdjustmentPercentage, respectively, on any resulting therefrom shall be reset to “zero” following the conclusion of such Applicable Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment DatePeriod. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Company within the period set forth in this Section 1.72.18(i), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% (such positive rates, collectively, the “Threshold Adjustment”) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.18(i) and continuing until the day immediately Company delivers a Pricing Certificate to the Administrative Agent. In the event no Pricing Certificate is delivered for a fiscal year by June 30th of such year, the Sustainability Rate Adjustment and Sustainability Fee Adjustment with respect to such fiscal year shall be the Threshold Adjustment. In the event no Sustainability Report is delivered for the fiscal year ended October 3, 2021 prior to delivery of the next Pricing Certificate for the fiscal year ending October 2, 2022, the Sustainability Pricing Rate Adjustment Dateand Sustainability Fee Adjustment with respect to such fiscal year shall be the Threshold Adjustment. (d) If (i)(A) a Borrower the Company or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and), and in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, was a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Interest Rate Percentage and the Facility Applicable Commitment Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed to be not materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics shall be deemed proper, and in each case shall not implicate this Section 2.18(d), if such information or calculation was made by the Company in good faith based on information reasonably available to the Company at the time such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, Default so long as the Borrowers comply Company complies with the terms of this Section 1.7 2.18(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code of the United States (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph subsection (d) shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphsubsection (d), (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Certificate. The Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatePricing Certificate, without further inquiry). (g) As soon as available and in To the extent any event within 120 days following occurs (which would include, without limitation, a material disposition or material acquisition) which, in the end opinion of each calendar year the Company and the Sustainability Coordinator, acting reasonably, means that one or more of the Sustainability Targets or Sustainability Thresholds set forth in the Sustainability Table is no longer applicable given changes in the Company’s structure, then the Company and the Sustainability Coordinator will report to the Lenders that such Sustainability Targets and Sustainability Thresholds will no longer apply. In such a scenario, the Company will then cease to refer to the applicable KPI Metrics, Sustainability Targets and Sustainability Thresholders in the Pricing Certificate for such period. (commencing with h) To the calendar year ending December 31, 2021extent the Sustainability Coordinator ceases to be a Lender (or an Affiliate of a Lender), the Company shall use commercially reasonable efforts to seek to appoint another Person that is a Lender (or an Affiliate of a Lender) to fulfill the role of the Sustainability Coordinator. (i) The Company shall use commercially reasonable efforts to deliver to the Administrative Agent a Pricing Certificate for the most recently-recently ended calendar fiscal year may be (commencing with delivery in 2023 for the fiscal year ended in 2022) within sixty (60) days of the release of the annual Sustainability Report (but in no event earlier than February 1st of any fiscal year); provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year unless the Borrowers may elect Company elects not to deliver a Pricing CertificateCertificate for such fiscal year, such Pricing Certificate shall be delivered no later than June 30th of any fiscal year. Any such election shall not constitute a Default or Event of Default (hereunder, but such failure shall subject the Company to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Threshold Adjustment and Sustainability Fee Adjustment being applied as set forth described in Section 1.7(c)2.18(c) above. (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Tetra Tech Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage Rate described under the headings “Applicable Rate for LIBORTerm Benchmark Loans and RFR Loans” and “Applicable Rate for ABR Loans” in the Revolving Loans incurred by DEI definition of “Applicable Rate” shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the Facility Fee for Commitments Rate described under the DEI Sublimit heading “Applicable Rate for Revolving Facility Commitment Fee” in the definition of “Applicable Rate” shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics the Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to paragraph (f) of this Section 2.23 based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of paragraph (f) of this Section 2.23). For the avoidance of doubt, changes to the Applicable Rate pursuant to this Section 2.23 in respect of any Class of Loans and Commitments shall cease on the earlier of (x) the Maturity Date in respect of such Class of Loans and Commitments and (y) December 31, 20262027 (unless otherwise agreed by the Borrower and the Lenders pursuant to an amendment effected in accordance with Section 9.02). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate (as described in clause (i) of Section 2.23(a)) will never be reduced or increased by more than 0.05% %, and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit Rate (as described in clause (ii) of Section 2.23(a)) will never be reduced or increased by more than 0.01%, in each case pursuant to the Sustainability Margin Rate Adjustment and or the Sustainability Commitment Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Rate by reason of meeting one or several both KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in paragraph (f) of this Section 1.72.23, the Sustainability Margin Rate Adjustment will be a positive 0.05% and the Sustainability Commitment Fee Adjustment will be a positive 0.01% %, in each case commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period paragraph (f) of this Section 2.23 and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable calendar year. (d) If (i)(A) a Borrower the Borrower, any Lender or any Lender Issuing Bank becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderLender or any Issuing Bank, such Lender or Issuing Bank, in good faith, delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Lender, each Issuing Bank and the BorrowersBorrower and shall be conclusive absent manifest error), or (B) the Borrowers Borrower, the Lenders and the Lenders Issuing Banks agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, then the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics, as applicable), commencing on the fifth Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, provided that the Borrowers comply Borrower complies with the terms of this Section 1.7 2.23(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 two Business Days after such a demand or shall accrue interest at the applicable default rate provided specified in Section 3.1(b2.12(c) prior to the date that is 10 two Business Days after such a demand. (fe) Each party hereto hereby agrees that neither none of the Sustainability Structuring Agent, the Administrative Agent nor or the Co-Sustainability Structuring Agent Arrangers shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Rate Adjustment or any Sustainability Commitment Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 150 days following the end of each calendar year of the Borrower (commencing with the calendar year ending December 31, 2021), the Borrower shall deliver to the Administrative Agent (for distribution to the Lenders) a Pricing Certificate for the most recently-ended calendar year may be year; provided by DEI as set forth in this Section 1.7; provided, that, that for any calendar year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120150-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in paragraph (c) of this Section 1.7(c2.23). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Crown Castle International Corp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Parent provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Applicable Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate in the manner and (ii) at the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth times described in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to this Section 1.7(c)1.19. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Applicable Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 7.6(e) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate for the most recently ended calendar year and the calculations of the Sustainability Applicable Margin Adjustment and the Sustainability Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 7.6(e)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.050.02% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, per annum pursuant to the Sustainability Applicable Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several both KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a for any calendar year is delivered by DEI within the period set forth in this Parent by the time required pursuant to Section 1.77.6(e), the Sustainability Applicable Margin Adjustment will be positive 0.050.02% and the Sustainability Fee Adjustment will be positive 0.01% per annum commencing on the last day by which such Pricing Certificate was required to have been delivered pursuant to the terms of such period Section 7.6(e) and continuing until the day immediately prior fifth (5th) Business Day after the Parent delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Parent or any Lender becomes aware of any material inaccuracy in the Sustainability Applicable Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be promptly shared with each Lender and the BorrowersParent), or (B) the Borrowers Parent and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Applicable Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in both an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any applicable period and an increase in the amount of interest payable by the Borrower for such applicable period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable.the (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Parent of any Sustainability Applicable Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in To the extent any event within 120 days following the end of each calendar year occurs (commencing with the calendar year ending December 31which would include, 2021)without limitation, a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; providedmaterial disposition or material acquisition) which, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In opinion of the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target Parent and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition Administrative Agent, acting reasonably, means that one or divestiture such that more of the Renewable Energy Generation Capacity Percentage Target KPI Metrics is no longer appropriate, then the Parent and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and will report to the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.KPI Metric will no

Appears in 1 contract

Samples: Credit Agreement (Jones Lang Lasalle Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor not decreased), as applicable, ) pursuant to the Sustainability Margin Applicable Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment Amount as set forth in such KPI Metrics Pricing Certificate. If ; provided, that in no Pricing Certificate is so delivered in respect event will the Applicable Rate be reduced to less than zero as a result of a calendar year, the Sustainability Margin Applicable Rate Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c)Amount. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Applicable Rate Adjustment and the Sustainability Fee Adjustment Amount shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 7.02(f) based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Applicable Rate Adjustment and the Sustainability Fee Adjustment in Amount therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 7.02(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than one basis points (0.01%, ) pursuant to the Sustainability Margin Applicable Rate Adjustment and Amount from the Sustainability Fee Adjustment, respectively, on Applicable Rate that would have applied in the absence of such adjustment during any Sustainability Pricing Adjustment Datefiscal year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Rate by reason of meeting one or several the KPI Metrics Metric in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is delivered or able to be delivered pursuant to Section 7.02(f). (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.77.02(f), the Sustainability Margin Applicable Rate Adjustment Amount will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% zero basis points (0.00%) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 7.02(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(Ai) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Applicable Rate Adjustment Amount or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in and the case of any Lender, Borrower or such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (Bii) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and then, in each case, as applicable, (iiA) if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment Amount or the KPI Metrics Metric would have resulted in an increase no change in the Applicable Percentages Rate for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any such period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1x) the amount of interest and fees that should have been paid for such period over (2y) the amount of interest and fees actually paid for such period. If a period and (B) if the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment Amount or the KPI Metrics Metric would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment Amount or the KPI MetricsMetric, as applicable), commencing on the first (1st) Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Applicable Rate Adjustment Amount or the KPI MetricsMetric, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.18(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph clause (d) shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphclause (d), (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Applicable Rate Adjustment or Sustainability Fee Adjustment Amount (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Phillips Edison & Company, Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Sustainability Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior containing the Borrower’s election to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofapply a Sustainability Adjustment, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreasednot adjusted), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined effective as of the fifth (5th) Business Day following receipt by the Pricing Administrative Agent of a Sustainability Certificate Date for such Pricing Certificate delivered pursuant to Section 2.25(f) based upon the KPI Sustainability Metrics for such calendar year Adjustment Amount set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Margin resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Sustainability Certificate, the last day such Sustainability Certificate could have been delivered pursuant to the terms of Section 2.25(f)). (b) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.010.02%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Dateperiod. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason Margin applied pursuant to the terms of meeting one or several KPI Metrics this Section 2.25 in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Sustainability Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.72.25(f) or if the Borrower elects in any Sustainability Certificate not to have a Sustainability Adjustment apply, the no Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day such Sustainability Certificate could have been delivered pursuant to the terms of such period Section 2.25(f) and continuing until the day immediately prior Borrower delivers a Sustainability Certificate to the Administrative Agent for the next Sustainability Pricing Adjustment Datesucceeding calendar year. (d) If (i)(A) a the Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Sustainability Metrics Adjustment Amount as reported in a Pricing Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower becomes aware of a Sustainability Inaccuracy and the Lenders Borrower and the Required Banks mutually agree that there was a Pricing Sustainability Certificate Inaccuracy at the time of delivery of a Pricing Sustainability Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Sustainability Metrics Adjustment Amount would have resulted in an increase in no adjustment to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Banks promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent or any LenderBank), but in any event within 10 Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.25(d) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Sustainability Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gi) As soon as available and in any event within 120 days following the end Not later than October 31st of each calendar year year, the Borrower shall deliver a Sustainability Certificate to the Administrative Agent (commencing with and the calendar year ending December 31, 2021), Administrative Agent shall promptly provide a Pricing Certificate copy to each Bank) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, (beginning with October 2023 for any the calendar year ending December 31, 2022) or, if the Borrowers may elect Borrower reasonably believes that a Sustainability Rating with respect to the immediately preceding calendar year is expected but will not be issued prior to October 31st, written notice that the Borrower does not expect to receive the Sustainability Rating prior to such date and (ii) if in any year a Sustainability Rating with respect to the immediately preceding calendar year is issued on or after October 31st and the written notice described in clause (i) above has been provided to the Administrative Agent, the Borrower shall, not later than the date that is ten (10) Business Days after the Borrower receives notification from GRESB that the GRESB Benchmark Report with respect to the immediately preceding calendar year is available, deliver a Pricing Certificate, Sustainability Certificate with respect to such election immediately preceding calendar year; provided that failure to timely deliver a Sustainability Certificate or written notice under this clause (f) shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c2.25(c)). (hg) In Notwithstanding the event Borrowers forgoing, if (A) GRESB fails or is no longer able to issue a Sustainability Rating, or otherwise delays the issuance of a Sustainability Rating without the consent of EQR, (B) GRESB notifies EQR, or makes an announcement to the effect, that it will no longer issue a Sustainability Rating, or (C) the scoring methodologies or other basis upon which the Sustainability Rating is determined shall materially change from the methodologies and basis for the determination of the Sustainability Rating in effect for the fiscal year of EQR ending December 31, 2022, then in any such case, (x) EQR or the Sustainability Structuring Agent (acting on the instructions of their Subsidiaries acquire the Required Banks) may request that discussions be entered into between EQR and the Sustainability Structuring Agent (for a period of no more than 30 consecutive days, or divest such longer period as may be mutually agreed by the Borrower and the Sustainability Structuring Agent (with the consent of the Required Banks)) with a business, facility or Subsidiary view to agreeing on a substitute basis for determining a Sustainability Rating (with Capacity in excess the consent of 100MWthe Required Banks); (y) during any such discussion period, the Renewable Energy Generation Capacity Percentage Target Sustainability Metrics Adjustment Amount with respect to any period between Sustainability Pricing Adjustment Dates shall be determined pursuant to clause (a), (b) or (c) of the definition of Sustainability Metrics Adjustment Amount, based on the Sustainability Rating Change or Sustainability Rating, as applicable, that was in effect and applied immediately prior to the date on which such discussion period commenced; (z) if no agreement can be reached between the Borrower and the Renewable Energy Generation Capacity Percentage Threshold Sustainability Structuring Agent during such discussion period, unless otherwise agreed by the Borrower and the Sustainability Structuring Agent (with the consent of the Required Banks), the Sustainability Metrics Adjustment Amount shall be adjusted determined pursuant to account for such acquisition or divestiture such that clause (c) of the Renewable Energy Generation Capacity Percentage Target definition of Sustainability Metrics Adjustment Amount and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver apply to the Administrative Agent Applicable Margin for Loans from and after the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days last day of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholddiscussion period.

Appears in 1 contract

Samples: Revolving Credit Agreement (Erp Operating LTD Partnership)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Sustainability Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor not decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment shall be determined as of the fifth Business Day following receipt by the Pricing Administrative Agent of a Sustainability Certificate Date for such Pricing Certificate delivered pursuant Section 3.11(f) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Margin resulting from a Sustainability Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Sustainability Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Sustainability Certificate, the last day such Sustainability Certificate could have been delivered pursuant to the terms of Section 3.11(f)). (b) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.010.025%, pursuant to the Sustainability Margin Rate Adjustment during any Reference Year; provided that, and notwithstanding anything to the contrary in this Agreement, the definitions of Tenant SBT Percentage and the Sustainability Fee AdjustmentTable may be amended or otherwise modified with the consent of the Borrower, respectivelythe Sustainability Structuring Agent, on any Sustainability Pricing Adjustment Datethe Administrative Agent and the Requisite Lenders. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason reference to any of meeting one or several the KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Sustainability Certificate with respect to a calendar year is delivered by DEI the Borrower, or any Sustainability Certificate shall be incomplete and fail to include the KPI Metric for the applicable Reference Year, within the period set forth in this Section 1.73.11(f), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.010.00% commencing on the last day such Sustainability Certificate could have been delivered pursuant to the terms of such period Section 3.11(f) and continuing until the day immediately prior Borrower delivers a Sustainability Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable Reference Year. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Rate Adjustment or the KPI Metrics as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) and, in the case of any Lender, and such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower becomes aware of a Sustainability Certificate Inaccuracy and the Lenders Borrower and the Administrative Agent shall mutually agree that there was a Pricing Sustainability Certificate Inaccuracy at the time of delivery of a Pricing any Sustainability Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics Metric would have resulted in no adjustment or an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any applicable period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent or Agent, any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 3.11(d) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (ax) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (I) a written demand is made for such payment by the Administrative Agent in accordance with such paragraphparagraph or (II) 10 Business Days after the Borrower has received written notice of, or has agreed in writing that there was, a Sustainability Certificate Inaccuracy (such date, the “Certificate Inaccuracy Payment Date”), (by) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (cz) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Post Default Rate prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (fe) Each party hereto hereby agrees that neither the Administrative Sustainability Structuring Agent nor the Co-Sustainability Structuring Administrative Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Sustainability Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 days following the end of each calendar fiscal year of the Borrower (commencing with the calendar fiscal year ending December 31, 20212023), the Borrower shall deliver to the Administrative Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Requisite Lenders: a Pricing Sustainability Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Sustainability Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c3.11(c). (h) ). In the event Borrowers or any of their Subsidiaries acquire or divest the Borrower’s fiscal year is changed to a business, facility or Subsidiary with Capacity in excess of 100MWnon-calendar year fiscal year, the Renewable Energy Generation Capacity Percentage Target and Borrower will be permitted to adjust the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that timing of delivery of the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition Sustainability Certificate at its election in a manner and methodology that are intended to maintain consistency with the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdforegoing.

Appears in 1 contract

Samples: Term Loan Agreement (NETSTREIT Corp.)

Sustainability Adjustments. (a) DEI may deliver Following the delivery of a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Aggregate KPI Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing CertificateCertificate in the manner and at the times described in this Schedule 1(b), and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Aggregate KPI Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to Section 1.7(c)this Supplemental Pricing Schedule. For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Aggregate KPI Margin Adjustment and the Sustainability Aggregate KPI Fee Adjustment shall be determined effective as of the fifth Business Day following receipt by the Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to clause (f) below based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Aggregate KPI Margin Adjustment and the Sustainability Aggregate KPI Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daycalculations, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin and the Commitment Fee Rate resulting from a Pricing Certificate and the Aggregate KPI Margin Adjustment Date and the Aggregate KPI Fee Adjustment related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of clause (f) below). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage Margin for Revolving Loans incurred by DEI the Borrower will never be reduced or increased by more than 0.05% 5.0 basis points and that the Applicable Percentage Commitment Fee Rate for the Facility Fee for Commitments under the DEI Sublimit Borrower will never be reduced or increased by more than 0.01%1.0 basis points, in each case pursuant to the Sustainability Aggregate KPI Margin Adjustment and or the Sustainability Aggregate KPI Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Commitment Fee Rate by reason of meeting application of one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall apply only apply for during the applicable period until the date immediately preceding the next Sustainability Pricing Adjustment Dateset forth in clause (a)(ii)(B) above. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is has been delivered by DEI the Borrower within the period set forth in this Section 1.7clause (f) below, the Sustainability Aggregate KPI Margin Adjustment will be positive 0.05% 5.0 basis points and the Sustainability Aggregate KPI Fee Adjustment will be positive 0.01% 1.0 basis points commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period clause (f) below and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAgent. (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee any KPI Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each other Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee any KPI Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)bankruptcy code, automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such periodperiod (the “True-Up Amount”). If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee KPI Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Commitment Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee such KPI Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages Margin and the Commitment Fee Rate for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Borrower shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee such KPI Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a an Unmatured Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 Schedule 1(b) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)bankruptcy code, (ai) any additional amounts required to be paid pursuant the immediate immediately preceding paragraph clause shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by Administrative the Agent shall not constitute a an Unmatured Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided set forth in Section 3.1(b) 2.9 prior to the such date that is 10 ten (10) Business Days after such a written demand. For the avoidance of doubt, so long as the Borrower pays the True-Up Amount prior to or upon such date that is ten (10) Business Days after such written demand for payment, the Lenders shall have no further recourse with respect to the Pricing Certificate Inaccuracy (or the consequences thereof). (f) As soon as available and in any event after April 1st of each calendar year and on or before June 30th of each calendar year (such date, the “Pricing Certificate Delivery Date”) (commencing with April 1st and June 30th of 2022), the Borrower may deliver to the Agent (i) a Pricing Certificate for the most recently-ended calendar year and (ii) a review report of the KPI Metrics Auditor confirming that such auditor is not aware of any material modifications that should be made to such computations in order for them to be presented in all material respects in conformity with the applicable reporting criteria; provided, that, for any calendar year the Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute an Unmatured Default or Default (but such failure to so deliver a Pricing Certificate by the Pricing Certificate Delivery Date shall result in the Aggregate KPI Margin Adjustment and the Aggregate KPI Fee Adjustment being applied as set forth in clause (c) above). (g) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-any Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee KPI Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Portland General Electric Co /Or/)

Sustainability Adjustments. (a) DEI may deliver On each Sustainability Pricing Adjustment Date (as defined below) following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar fiscal year (beginning with the date the Administrative Agent’s receipt thereoffiscal year ending January 31, each a “Pricing Certificate Date”2022), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined and effective as of the fifth first Business Day following receipt by the Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.01(i)(vii) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business DayAdjustment, as applicable, set forth therein (each such day, a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin and the Applicable Percentage resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 5.01(i)(vii). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.05% 0.04%, and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, in each case pursuant to the Sustainability Margin Adjustment and or the Sustainability Fee Adjustment, respectivelyas applicable, on during any Sustainability Pricing Adjustment Date12-month period. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several more KPI Metrics in any calendar fiscal year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.75.01(i)(vii), the Sustainability Margin Adjustment will be positive 0.050.04% and the Sustainability Fee Adjustment will be a positive 0.01% %, in each case commencing on the last day of such period applicable Sustainability Pricing Adjustment Date and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAgent. (d) If (i)(A) a the Borrower or any Lender becomes become aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for Margin or the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Applicable Percentage for any period, then the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 five Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees Facility Fees that should have been paid for such period over (2) the amount of interest and fees Facility Fees actually paid for such period. If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for Margin or the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Applicable Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit Applicable Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, provided that the Borrowers comply Borrower complies with the terms of this Section 1.7 2.21(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 ten Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon such date that is ten Business Days after such written demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Interest prior to the such date that is 10 ten Business Days after such a written demand. (fe) Each party hereto hereby acknowledges and agrees that neither the Administrative Agent nor the CoSustainability Structuring Agent make assurances as to (i) whether this Agreement meets any Borrower or Lender criteria or expectations with regard to environmental impact and sustainability performance, or (ii) whether the characteristics of the relevant KPI Metrics included in the Agreement, including any environmental and sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-linked credit facilities. Each party hereto hereby further acknowledges and agrees that neither the Agent nor the Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of (x) the relevant KPI Metrics or (y) any Sustainability Margin Adjustment or any Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry, when implementing any such pricing adjustment). (gf) As soon as available and in any event within 120 days following To the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in extent the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest Structuring Agent ceases to be a business, facility or Subsidiary with Capacity in excess of 100MWLender, the Renewable Energy Generation Capacity Percentage Target and Borrower shall use commercially reasonable efforts to seek to appoint another Person that is a Lender to fulfill the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days role of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage ThresholdSustainability Structuring Agent.

Appears in 1 contract

Samples: Credit Agreement (Autodesk, Inc.)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to Effective as of the fifth Business Day following receipt by the Administrative Agent of a Sustainability Certificate delivered pursuant to Section 2.21(e) (such day, the "Sustainability Pricing Adjustment Date") in respect of the most recently ended calendar year on any date prior to Reference Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year ending December 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2023, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Rate and the Commitment Fee resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) In the event the Borrower does not deliver a Sustainability Certificate within the period set forth in Section 2.21(e) or any Sustainability Certificate shall be incomplete and fail to satisfy the requirements set forth in the definition of "Sustainability Certificate" (including the failure to set forth the Sustainability Rate Adjustment and the Sustainability Commitment Fee Adjustment and calculations in reasonable detail of the KPI Metrics, in each case, for the applicable Reference Year), the Sustainability Rate Adjustment will be positive 0.050% and the Sustainability Commitment Fee Adjustment will be positive 0.010% commencing on the fifth Business Day following the last day such Sustainability Certificate should have been delivered pursuant to the terms of Section 2.21(e) and continuing until the fifth Business Day following receipt by the Administrative Agent of a complete Sustainability Certificate for such Reference Year. (c) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood Reference Year and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Rate or such Facility the Commitment Fee by reason reference to any of meeting one or several the KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) Date occurs. It is hereby further understood and agreed that if no such Pricing Certificate with respect the Applicable Rate will never be reduced or increased by more than 0.050% and that the Commitment Fee will never be reduced or increased by more than 0.010%, pursuant to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Commitment Fee Adjustment, respectively, during any Reference Year; provided that, and notwithstanding anything to the contrary in this Agreement (including any provision of Section 10.01 requiring the consent of "each Lender directly affected thereby" for reductions in interest rates), the definition of KPI Metric, any thresholds or targets with respect thereto, Section 2.21 and the Sustainability Table may be amended or otherwise modified with the consent of the Borrower, the Administrative Agent and the Required Lenders; provided, however, for the avoidance of doubt, any changes to the Applicable Rate pursuant to any Sustainability Rate Adjustment and the Commitment Fee pursuant to the Sustainability Commitment Fee Adjustment will in excess of the amounts set forth above shall be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior subject to the next Sustainability Pricing Adjustment Dateconsent of "each Lender directly affected thereby" in accordance with Section 10.01. (d) If (i)(A) a Borrower or any Lender the Administrative Agent becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing "Sustainability Certificate Inaccuracy") andand the Administrative Agent provides written notice to the Borrower thereof, in the case or (B) any Lender becomes aware of any Lender, Sustainability Certificate Inaccuracy and such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, delivers a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (BC) the Borrowers and the Lenders agree that there was Borrower becomes aware of a Pricing Sustainability Certificate Inaccuracy at and delivers notice thereof to the time of delivery of a Pricing CertificateAdministrative Agent in accordance with Section 6.13(b), and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in no adjustment or an increase in the Applicable Percentages Rate or Commitment Fee for any applicable period, (x) commencing on the Revolving Loans incurred by DEI fifth Business Day following delivery of a corrected Sustainability Certificate to the Administrative Agent, the Applicable Rate and Commitment Fee shall be adjusted to reflect such corrected calculations of the Sustainability Rate Adjustment and the Facility Sustainability Commitment Fee for Commitments under Adjustment and (y) the DEI Sublimit for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, promptly on as the case may be, within ten (10) Business Days following written demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 which such demand shall not be made, for the avoidance of doubt, until the fifth Business Days after the Borrowers have received written notice of, or have agreed in writing that there was, Day following delivery of a Pricing Certificate Inaccuracycorrected Sustainability Certificate, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.21(d) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (ax) any additional amounts required to be paid pursuant the immediate preceding to this paragraph shall not be due and payable until the date that is 10 ten (10) Business Days after following a written demand is made for such payment by the Administrative Agent in accordance with this paragraph (such paragraphdate, the "Certificate Inaccuracy Payment Date"), (by) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (cz) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the default rate provided in pursuant to Section 3.1(b2.08(b) prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (ge) As soon as available and in any event within 120 90 days following the end of each calendar year of the Borrower (commencing with the calendar year ending December 31, 20212023), the Borrower shall deliver to the Administrative Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Required Lenders, a Pricing Sustainability Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Sustainability Certificate, such . Such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 12090-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c2.21(b). (h) ). In the event Borrowers or any of their Subsidiaries acquire or divest the Borrower's fiscal year is changed to a businessnon-calendar year fiscal year, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver following prior written notice to the Administrative Agent and the Lenders, the Borrower shall be permitted to adjust the timing of delivery of the Sustainability Certificate at its election in a manner intended to maintain consistency with the foregoing. (f) If, after the date hereof, there occurs any Sustainability Modification Event, and the Borrower notifies the Administrative Agent and the Sustainability Structuring Agent in writing that the Borrower requests an adjustment to the Sustainability Certificate or an amendment to any provision hereof to account for the effect of such Sustainability Modification Event (or if the Administrative Agent notifies the Borrower that the Required Lenders a certificate that request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such Sustainability Modification Event, then (i) calculates the Borrower and the Administrative Agent (in reasonable detail consultation with the Sustainability Structuring Agent) shall negotiate in good faith to agree to adjust to the Sustainability Certificate or amend the provisions hereof to account for the effect of such adjusted Renewable Energy Generation Capacity Percentage Target Sustainability Modification Event, and Renewable Energy Generation Capacity Percentage Threshold the provisions of this Agreement shall be interpreted on the basis of the provisions in effect and applied immediately prior to such Sustainability Modification Event for a period of not more than 90 days (unless the provisions hereof shall have been amended in accordance herewith or such notice shall have been withdrawn). If, after 90 days following any such notice, the agreement to such amendment of the Borrower, the Administrative Agent and the Required Lenders under Section 10.01 has not been obtained, there will cease to be any Sustainability Rate Adjustment and any Sustainability Commitment Fee Adjustment until such time as the parties hereto can agree upon any such adjustments in accordance with the terms hereof and during such period (i) the credit facility described in this Agreement shall cease to be a sustainability-linked loan and (ii) restates Exhibit 1.7no party to this Agreement shall, without the prior written consent of the Administrative Agent, the Borrower and the Sustainability Structuring Agent, make any public or private representations or description of the credit facility described in this Agreement as a sustainability-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdlinked loan.

Appears in 1 contract

Samples: Credit Agreement (Ansys Inc)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Principal Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Rate Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment manner and at the Sustainability Fee Adjustment times described in respect of such calendar year shall be determined pursuant to this Section 1.7(c)2.18. For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Rate Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or following receipt by the Administrative Agent of a Pricing Certificate delivered pursuant to Section 6.02(c) based upon the CO2 Intensity set forth in such Business DayPricing Certificate and the calculation of the Sustainability Rate Adjustment therein (such day, as applicable, each a the “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Rate resulting from a Pricing Certificate and the Sustainability Pricing Rate Adjustment Date related thereto shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate for the immediately following period, the last day such Pricing Certificate for such following period could have been delivered pursuant to the terms of Section 6.02(c)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that (i) the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.050.025% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Rate Adjustment during any fiscal year and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubt, (ii) any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Rate by reason of meeting one or several KPI Metrics sustainability metrics in any calendar year shall not be cumulative year-year- over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Principal Borrower within the period set forth in this Section 1.76.02(c), the Sustainability Margin Rate Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.010.025% commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 6.02(c) and continuing until the day immediately prior Principal Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a any Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Rate Adjustment or the KPI Metrics CO2 Intensity as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersPrincipal Borrower), or (B) the Borrowers and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics CO2 Intensity would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Principal Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a any Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI Metrics CO2 Intensity would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Principal Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI MetricsCO2 Intensity, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Rate Adjustment or the KPI MetricsCO2 Intensity, as applicableapplicable (but for the avoidance of doubt, no credit or refund shall be issued to the Borrowers in respect of interest or other amounts paid or accrued prior to such date). Notwithstanding the foregoing or anything to the contrary herein, any information in a Pricing Certificate shall be deemed to be not materially inaccurate (and no Pricing Certificate Inaccuracy shall be deemed to have occurred in respect thereof), and any calculation of the Sustainability Rate Adjustment or the CO2 Intensity shall be deemed proper, and in each case shall not implicate this Section 2.18(d), if such information or calculation was made by the Borrowers in good faith based on information reasonably available to the Borrowers at the time that such calculation was made. (e) It is understood and agreed that any Pricing Certificate Inaccuracy (and any consequences thereof) shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 2.18(e) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 ten (10) Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (bii) any nonpayment of such additional amounts prior to or upon the date that is ten (10) Business Days after such written demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the such date that is 10 ten (10) Business Days after such a written demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the such date that is 10 ten (10) Business Days after such a written demand. (f) Each party hereto hereby agrees that neither the Administrative Agent, the Sustainability Structuring Agent nor the Co-Sustainability Structuring Agent Lenders shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Borrowers of any Sustainability Margin Adjustment or Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available If, after the Fourth Amendment Effective Date, there occurs any Sustainability Recalculation Event, and either (i) the Principal Borrower notifies the Administrative Agent in writing that the Borrowers request an amendment to any event within 120 days following provision hereof to eliminate, accommodate or otherwise take into account the end effect of each calendar year such Sustainability Recalculation Event, or (commencing with ii) the calendar year ending December 31, 2021Administrative Agent notifies the Principal Borrower in writing that the Required Lenders request an amendment to any provision or provisions hereof for such purpose (it being understood and agreed that any such notice may be given before or after such Sustainability Recalculation Event has occurred), a Pricing Certificate for then (A) the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; providedBorrowers, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates Sustainability Structuring Agent shall negotiate in reasonable detail good faith to amend the provisions hereof to eliminate, accommodate or otherwise take into account the effect of such adjusted Renewable Energy Generation Capacity Percentage Target Sustainability Recalculation Event for the period from and Renewable Energy Generation Capacity Percentage Threshold after the occurrence of such Sustainability Recalculation Event, and (iiB) restates Exhibit 1.7-1 with the provisions of this Agreement shall be interpreted on the basis of the provisions in effect and applied immediately prior to such adjusted amountsSustainability Recalculation Event for a period of not more than thirty (30) days following the date of any such notice (unless the provisions hereof shall have been amended in accordance herewith or such notice shall have been withdrawn). If, andafter thirty (30) days following the date of any such notice, if Lenders constituting the consent of the Borrowers, the Administrative Agent and the Required Lenders have under Section 10.01 has not objected to such adjusted Renewable Energy Generation Capacity Percentage Target been obtained, on the one-year anniversary of the date a delivered Pricing Certificate was most recently delivered or due and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such deliverynot delivered, then Exhibit 1.7-1 as applicable, the Applicable Rate shall be deemed amended calculated without regard to reflect such adjusted Renewable Energy Generation Capacity Percentage Target Section 2.18, which Section and Renewable Energy Generation Capacity Percentage Thresholdrelated definitions shall have no further force or effect.

Appears in 1 contract

Samples: Credit Agreement (Highwoods Realty LTD Partnership)

Sustainability Adjustments. (a) DEI may deliver Commencing on the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar yearCalendar Year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit Percentage shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Facility Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined applied as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate pursuant to Section 2.15(f) based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin and the Applicable Facility Fee Percentage resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 2.15(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearCalendar Year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.050.04% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit Percentage will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment DateCalendar Year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Applicable Facility Fee Percentage by reason of meeting one or several the KPI Metrics Metric in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Company with regard to within the period set forth in this Section 1.72.15(f), the Sustainability Margin Adjustment will be a positive 0.050.04% and the Sustainability Facility Fee Adjustment will be a positive 0.01% commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 2.15(f) and continuing until the day immediately prior Company delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable Calendar Year. (d) If (i)(A) a Borrower or any Lender becomes the Required Banks become aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate for a given Calendar Year (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) andand the Required Banks deliver, in the case of any Lender, such Lender delivers, not no later than 10 the last Business Days after obtaining knowledge thereofDay of the following Calendar Year, a written notice to the Administrative Agent and the Company describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersCompany), or (B) the Borrowers Company becomes aware of a Pricing Certificate Inaccuracy and the Lenders Company and the Administrative Agent shall mutually agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics Metric would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Applicable Facility Fee for Commitments under the DEI Sublimit Percentage for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersBanks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent or Agent, any LenderBank), but in any event within 10 Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such periodperiod (a “Pricing Certificate Inaccuracy Payment”). If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics Metric would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Applicable Facility Fee for Commitments under the DEI Sublimit Percentage for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI MetricsMetric, as applicable), commencing on the fifth Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Applicable Facility Fee for Commitments under the DEI Sublimit Percentage shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI MetricsMetric, as applicable. , for all periods occurring five (e5) Business Days after receipt by the Administrative Agent of such notice. For the avoidance of any doubt, the parties agree that any such adjustment to reflect a decrease in the Applicable Margin or Applicable Facility Fee Percentage for any period shall only be effective on a prospective basis and shall not require any adjustments to amounts previously paid by the Company prior to the discovery of a Pricing Certificate Inaccuracy. It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a an Unmatured Event of Default or Event of Default; provided, that, the Borrowers comply Company complies with (i) the terms of this Section 1.7 2.15 with respect to such the payment of any resulting Pricing Certificate InaccuracyInaccuracy Payment and (ii) its obligations under Section 6.01(a)(x). Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (i) a written demand is made for such payment by the Administrative Agent in accordance with such paragraphparagraph or (ii) 10 Business Days after the Company has received written notice of or has agreed in writing that there was, a Pricing Certificate Inaccuracy (such date, the “Certificate Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a an Unmatured Event of Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent nor the Administrative Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Adjustment or Sustainability Facility Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 270 days following of the end of each calendar year the Calendar Year in respect of which such Pricing Certificate is delivered (commencing with the calendar year first such Pricing Certificate permitted to be delivered in 2023 in respect of the Calendar Year ending December 31, 20212022), the Company shall deliver to the Administrative Agent and the Banks a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Calendar Year; provided, that, for any calendar year Calendar Year the Borrowers Company may elect not to deliver a Pricing Certificate, and such election shall not constitute a an Unmatured Event of Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-270 day period shall result in the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment being applied as set forth in Section 1.7(cclause (c) above). (hg) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWAdditionally, the Renewable Energy Generation Capacity Percentage Target Company: (i) (A) shall promptly notify the Administrative Agent and Co-Sustainability Structuring Agents of (1) any changes to the methodologies used to calculate the KPI Metric that would reasonably be expected to result in an increase or decrease to the Company and its Subsidiaries’ combined Scope 1 Emissions and Scope 2 Emissions by 5% or more, as determined in good faith by the Company, as compared to the Company and its Subsidiaries’ combined Scope 1 and Scope 2 Emissions as calculated immediately prior to such changes and/or (2) the occurrence of any Sustainability Recalculation Transaction or (B) may notify the Administrative Agent and Co-Sustainability Structuring Agents of any other changes to the methodologies used to calculate the KPI Metric or of any other acquisition, disposition, merger or similar transaction that does not otherwise qualify as a Sustainability Recalculation Transaction resulting in a change to Company and its Subsidiaries’ combined Scope 1 and Scope 2 Emissions; and (ii) in the case of either of the forgoing clauses (g)(i)(A) or (g)(i)(B), shall negotiate with the Administrative Agent and Co-Sustainability Structuring Agents (acting reasonably) in good faith any amendments, modifications or supplements required to the Sustainability Table and/or the relevant definitions as a result of such change in methodology or Sustainability Recalculation Transaction (or similar transaction), as applicable. Where the Company (acting reasonably) determines that, as a result of events beyond its reasonable control (including, without limitation, any future government authority directions applicable to government-related entities in the United States of America or in other jurisdictions in which the Company and its Subsidiaries operate, changes in law or regulations, actions by a public authority, fire, natural disaster and/or other events that disrupt business continuity), it is (x) prevented, hindered or delayed or (y) assisted in fulfilling its performance requirements in respect of the KPI Metric, the Company shall negotiate with the Administrative Agent and Co-Sustainability Structuring Agents (acting reasonably) in good faith with a view to agreeing on a replacement KPI Metric. In furtherance of the negotiations referred to above, the requested modifications shall undergo limited assurance verification by the Sustainability Assurance Provider as may be reasonably requested by the Administrative Agent and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for Co-Sustainability Structuring Agents, and such acquisition or divestiture such verification (in form and substance consistent with that the Renewable Energy Generation Capacity Percentage Target of a KPI Limited Assurance Statement and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver reasonably satisfactory to the Administrative Agent and the Lenders a certificate that Co-Sustainability Structuring Agents) shall be delivered to the Administrative Agent, the Co-Sustainability Structuring Agents and the Company. Following any such negotiation pursuant to this Section 2.15(g) and/or the occurrence of any Sustainability Recalculation Transaction, the relevant proposed amendments, modifications or supplements to this Agreement (iand/or the Exhibits and Schedules hereto) calculates shall be posted to the Banks and shall become effective five (5) Business Days after such amendment, modification or supplement is posted, unless the Required Banks object in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected writing to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold amendment, modification or supplement within 5 the five (5) Business Days of after such deliveryposting; provided, then Exhibit 1.7-1 that no such amendment, modification or supplement shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdmodify the percentages for the Sustainability Margin Adjustment and/or Sustainability Facility Fee Adjustment.

Appears in 1 contract

Samples: Credit Agreement (Occidental Petroleum Corp /De/)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to Effective as of the fifth Business Day following receipt by the Administrative Agent of a Sustainability Certificate delivered pursuant to Section 1.10(e) (such day, the “Sustainability Pricing Adjustment Date”) in respect of the most recently ended calendar year on any date prior to Reference Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year ending December 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2023, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate, and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant Subject to Section 1.7(c1.10(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change adjustment in the Applicable Percentages on any Rate and the Commitment Fee resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) In the event the Borrower does not deliver a Sustainability Certificate within the period set forth in Section 1.10(e) for the applicable Reference Year or any Sustainability Certificate for such Reference Year shall be incomplete and fail to satisfy the requirements set forth in the definition of “Sustainability Certificate” (including the failure to set forth the Sustainability Rate Adjustment, the Sustainability Commitment Fee Adjustment and/or calculations in reasonable detail of the KPI Metrics, in each case, for the applicable Reference Year), the Sustainability Rate Adjustment will be positive 0.05% and the Sustainability Commitment Fee Adjustment will be positive 0.01% commencing on the fifth Business Day following the last day such Sustainability Certificate was required to be delivered pursuant to Section 1.10(e) for such Reference Year and continuing until the fifth Business Day following receipt by the Administrative Agent of a complete Sustainability Certificate for such Reference Year. (c) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar Reference Year and any adjustment to the Applicable Rate or the Commitment Fee by reference to any of the KPI Metrics for any Reference Year shall not be cumulative year-over-year. Each Sustainability Rate Adjustment and Sustainability Commitment Fee Adjustment for any Reference Year shall only apply until the earlier of (i) the immediately succeeding Sustainability Pricing Adjustment Date and (ii) the fifth Business Day following the last day a Sustainability Certificate was required to be delivered pursuant to Section 1.10(e) for the immediately succeeding Reference Year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment, respectively, on during any Reference Year; provided that, and notwithstanding anything to the contrary in this Agreement (including any provision of Section 11.01 requiring the consent of “each Lender directly affected thereby” for reductions in interest rates), the definitions of Racial & Ethnic Diversity Percentage, Racial & Ethnic Diversity Percentage Applicable Rate Adjustment Amount, Racial & Ethnic Diversity Percentage Commitment Fee Adjustment Amount, Women in Leadership Percentage, Women in Leadership Percentage Applicable Rate Adjustment Amount, Women in Leadership Percentage Commitment Fee Adjustment Amount and the Sustainability Pricing Adjustment Date. For Table may be amended or otherwise modified with only the consent of the Borrower, the Administrative Agent and the Required Lenders; provided, however, for the avoidance of doubt, any adjustment changes to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments Rate pursuant to this Section made on any Sustainability Pricing Rate Adjustment Date shall only apply for and the period until Commitment Fee pursuant to the date immediately preceding Sustainability Commitment Fee Adjustment in excess of the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period amounts set forth in this Section 1.7, the Sustainability Margin Adjustment will above shall be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior subject to the next Sustainability Pricing Adjustment Dateconsent of “each Lender directly affected thereby” in accordance with Section 11.01. (d) If (i)(Ai) a Borrower or any Lender (A) the Administrative Agent becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) andand the Administrative Agent notifies the Borrower in writing thereof, in the case or (B) any Lender becomes aware of any Lender, Sustainability Certificate Inaccuracy and such Lender delivers, not later than 10 Business Days ten (10) days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (BC) the Borrowers and the Lenders agree that there was Borrower becomes aware of a Pricing Sustainability Certificate Inaccuracy at and delivers notice thereof in writing to the time of delivery of a Pricing CertificateAdministrative Agent, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in no adjustment or an increase in the Applicable Percentages Rate or Commitment Fee for any applicable period, then (x) commencing on the Revolving Loans incurred by DEI fifth Business Day following delivery of a corrected Sustainability Certificate to the Administrative Agent, the Applicable Rate and Commitment Fee shall be adjusted to reflect such corrected calculations of the Sustainability Rate Adjustment and the Facility Sustainability Commitment Fee for Commitments under Adjustment and (y) the DEI Sublimit for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any Lenderthe L/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have agreed in writing has determined that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, provided that the Borrowers comply Borrower complies with the terms of this Section 1.7 1.10(d) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (ax) any additional amounts required to be paid pursuant the immediate preceding to this paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (I) a written demand is made for such payment by the Administrative Agent in accordance with this paragraph or (II) 10 Business Days after the Borrower has received written notice of, or has determined that there was, a Sustainability Certificate Inaccuracy (such paragraphearlier date, the “Certificate Inaccuracy Payment Date”), (by) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (cz) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the default rate provided in pursuant to Section 3.1(b2.08(b) prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (ge) As soon as available and in any event within 120 90 days following the end of each calendar fiscal year of the Borrower (commencing with the calendar fiscal year ending December 31, 20212023), the Borrower shall deliver to the Administrative Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Required Lenders, a Pricing Sustainability Certificate for the most recently-ended calendar year may be Reference Year; provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Sustainability Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 12090-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c1.10(b). (h) ). In the event Borrowers or any of their Subsidiaries acquire or divest the Borrower’s fiscal year is changed to a businessnon-calendar fiscal year, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver following prior written notice to the Administrative Agent and the Lenders Lenders, the Borrower will be permitted to adjust the timing of delivery of the Sustainability Certificate at its election in a certificate that manner intended to maintain consistency with the foregoing. (f) If, after the Amendment No. 1 Effective Date, there occurs any Sustainability Recalculation Event, and either (i) calculates the Borrower notifies the Administrative Agent and the Sustainability Structuring Agent in reasonable detail writing that the Borrower requests an amendment to any provision hereof to eliminate, accommodate or otherwise take into account the effect of such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and Sustainability Recalculation Event, or (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting the Administrative Agent or the Sustainability Structuring Agent notifies the Borrower that the Required Lenders have not objected request an amendment to any provision or provisions hereof for such purpose (it being understood and agreed that any such notice may be given before or after such Sustainability Recalculation Event has occurred), then (A) the Borrower, the Administrative Agent, the Sustainability Structuring Agent and the Lenders shall negotiate in good faith to amend the provisions hereof to eliminate, accommodate or otherwise take into account the effect of such Sustainability Recalculation Event for the period from and after the occurrence of such Sustainability Recalculation Event, and (B) the provisions of this Agreement shall be interpreted on the basis of the provisions in effect and applied immediately prior to such adjusted Renewable Energy Generation Capacity Percentage Target Sustainability Recalculation Event for a period of not more than 90 days (unless the provisions hereof shall have been amended in accordance herewith or such notice shall have been withdrawn). If, after 90 days following any such notice, the consent of the Borrower, the Administrative Agent, the Sustainability Structuring Agent and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days the Required Lenders under Section 11.01 has not been obtained, there will cease to be any Sustainability Rate Adjustment and any Sustainability Commitment Fee Adjustment until such time as the parties hereto can agree upon any such adjustments in accordance with the terms hereof, and during such period, no party to this Agreement shall, without the prior written consent of such deliverythe Administrative Agent, then Exhibit 1.7the Sustainability Structuring Agent and the Borrower, make any public or private representations or description of the credit facility described in this Agreement as a sustainability-1 shall be deemed linked loan. 1.6. Section 2.16 of the Credit Agreement is hereby amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.read as follows:

Appears in 1 contract

Samples: Credit Agreement (Huron Consulting Group Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased)adjusted, as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (Ai) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.7(f) based upon the KPI Metrics Metric for such calendar year the applicable Reference Year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (ii) each change in the Applicable Percentages on any Sustainability Margin resulting from a Pricing Adjustment Date Certificate (or the non-delivery or delivery of an incomplete Pricing Certificate) shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.7(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar yearReference Year. It is further understood and agreed that (i) the Term SOFR Applicable Percentage for Revolving Loans incurred by DEI Margin, the Adjusted Daily Simple SOFR Applicable Margin and the Base Rate Applicable Margin will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, % pursuant to the Sustainability Margin Adjustment during any twelve-month period and the Sustainability Fee Adjustment, respectively, on (ii) at no time shall any Sustainability Pricing Adjustment DateApplicable Margin be less than 0.0%. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee Margin by reason of meeting one or several reference to the KPI Metrics Metric Target in any calendar year Reference Year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect is delivered, or any Pricing Certificate shall be incomplete and fail to a calendar year is delivered by DEI include the KPI Metric for the applicable Reference Year, within the period set forth in this Section 1.71.7(f), the Sustainability Margin Adjustment will be positive 0.05% and made to the Sustainability Fee Adjustment will be positive 0.01% Applicable Margin commencing on the last day of such period and continuing until the day immediately prior Pricing Certificate could have been delivered pursuant to the next Sustainability Pricing Adjustment Dateterms of Section 1.7(f). (d) If (i)(A) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (B) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics Metric would have resulted in an increase in no adjustment to the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent or Agent, any Lender), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.7(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (a) any additional amounts required to be paid pursuant to the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon concurrently with such demand for payment by the Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Default Rate pursuant to Section 3.1(b) 2.14 prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any no responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 90 days following the end of each any calendar year quarter ending on June 30 (commencing with the calendar year quarter ending December 31on June 30, 20212022), the Borrower may deliver a Pricing Certificate to the Administrative Agent (and the Administrative Agent shall promptly provide a copy to each Lender) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 12090-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In ). Subject to the event Borrowers or any provisions of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWSection 1.7(b), the Renewable Energy Generation Capacity Percentage Target Borrower may, at its election exercisable by delivering written notice to the Administrative Agent, adjust the Reference Year and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that timing of delivery of the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition Pricing Certificate in a manner and methodology that are intended to maintain consistency with the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdforegoing.

Appears in 1 contract

Samples: Unsecured Term Loan Agreement (First Industrial Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Facility Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment shall be determined applied as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to clause (f) below based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate and the Facility Fee resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date (or, in the case of non-delivery of a Pricing Certificate, the applicable KPI Certificate Default Date). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.050.040% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.010.010%, pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Rate or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate is delivered by the Company with respect to a any applicable calendar year is delivered by DEI within the period set forth in this Section 1.7clause (f) below, the Sustainability Margin Rate Adjustment will be positive 0.050.040% and the Sustainability Facility Fee Adjustment will be positive 0.010.010% commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period clause (f) below and continuing until the day immediately prior Company delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable calendar year. (d) If (i)(A) a Borrower the Administrative Agent or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, and such Lender delivers, not later than 10 20 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany), or (B) the Borrowers Company becomes aware of a Pricing Certificate Inaccuracy and the Lenders Company and the Administrative Agent shall mutually agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and Rate or the Facility Fee for Commitments under any period (but for such material inaccuracy), as determined by the DEI Sublimit for any periodAdministrative Agent in its reasonable discretion, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Lenders and L/C Issuers promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have Company has received written notice ofof (in the case of clause (d)(i)(A) above), or have has agreed in writing that there waswas (in the case of clause (d)(i)(B) above), a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, provided that the Borrowers comply Company complies with the terms of this clause (d) and Section 1.7 6.03(f) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after a earlier to occur of (i) written demand is made for such payment by the Administrative Agent in accordance with such paragraphparagraph or (ii) 10 Business Days after the Company has received written notice of (in the case of clause (d)(i)(A) above), or has agreed in writing that there was (in the case of clause (d)(i)(B) above), a Pricing Certificate Inaccuracy (such date, the “Certificate Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (fe) Each party hereto hereby agrees that neither the Administrative Sustainability Structuring Agent nor the Co-Sustainability Structuring Administrative Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Rate Adjustment or Sustainability Facility Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available and in any event within 120 180 days following the end of each calendar year of the Company (commencing with the calendar year ending December 31, 20212023), the Company shall deliver to the Administrative Agent and the Lenders a Pricing Certificate for the most recently-recently ended calendar year may be provided by DEI as set forth in this Section 1.7year; provided, that, for any calendar year the Borrowers Company may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120180-day period if not remedied for a period of thirty (30) days (the “KPI Certificate Default Date”) shall result in the Sustainability Margin Rate Adjustment and the Sustainability Facility Fee Adjustment being applied as set forth in Section 1.7(cclause (c) above). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Republic Services, Inc.)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to Effective as of the first Business Day following the receipt by Administrative Agent of a Sustainability Certificate delivered pursuant to Section 1.6(e) (such day, the “Sustainability Pricing Adjustment Date”) in respect of the most recently ended calendar year on any date prior to Reference Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year ending December 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2024, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate, and (ii) the Applicable Percentage for the Revolving Facility Fee for Commitments under the DEI Sublimit Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Margin and the Revolving Facility Fee Rate resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) In the event the Borrower does not deliver a Sustainability Certificate within the period set forth in Section 1.6(e) (commencing with the Sustainability Certificate due in respect of the 2024 Reference Year) or any Sustainability Certificate shall be incomplete and fail to satisfy the requirements set forth in the definition of “Sustainability Certificate” (including any failure to (i) set forth the Sustainability Rate Adjustment or the Sustainability Fee Adjustment or calculations in reasonable detail of the Average HERS Score, in each case, for the applicable Reference Year or (ii) provide the report of the Sustainability Metric Auditor as described in the definition of “Sustainability Certificate” or designate such Sustainability Metric Auditor in accordance with the definition of such term), the Sustainability Rate Adjustment will be a positive 0.01% and the Sustainability Fee Adjustment will be a positive 0.01%, in each case, commencing on the first Business Day following the last day such Sustainability Certificate should have been delivered pursuant to the terms of Section 1.6(e) and continuing until the first Business Day following receipt by the Administrative Agent of a complete Sustainability Certificate satisfying the requirements set forth in the definition of “Sustainability Certificate” for such Reference Year. (c) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar Reference Year, and no adjustment to the Applicable Margin or the Revolving Facility Fee Rate by reference to the Average HERS Score in any year (nor, for the avoidance of doubt, any Prior Sustainability Adjustment) shall be cumulative year-over-year. Each applicable adjustment shall only apply until the date on which the next adjustment is to occur (for the avoidance of doubt, it being understood that the Prior Sustainability Adjustment shall cease to apply immediately upon the First Sustainability Pricing Adjustment Date (or, if Borrower fails to timely deliver a Sustainability Certificate in respect of the 2024 Reference Year pursuant to the terms of Section 1.6(e), the date by which such Sustainability Certificate in respect of the 2024 Reference Year was required to be delivered pursuant to the terms of Section 1.6(e) (such applicable date, the “Prior Sustainability End Date”))). It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit Margin will never be reduced or increased by more than 0.01%, % and that the Revolving Facility Fee Rate will never be reduced or increased by more than 0.01% pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment, respectively, on during any Reference Year; provided that, and notwithstanding anything to the contrary in this Agreement (including the provisions of Section 12.6 requiring the consent of “each Lender directly affected thereby” for reductions in interest rates), the definitions of HERS Score and Average HERS Score and the Sustainability Pricing Adjustment Date. For Table may be amended or otherwise modified with the consent of the Borrower, the Administrative Agent, the Sustainability Agent and the Requisite Lenders; provided, however, for the avoidance of doubt, any adjustment changes to the Applicable Percentages for such Margin pursuant to any Sustainability Rate Adjustment and the Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments Rate pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Section 1.7, the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will in excess of the amounts set forth above shall be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior subject to the next Sustainability Pricing Adjustment Dateconsent of “each Lender directly affected thereby” in accordance with Section 12.6. (d) If (i)(A) a Borrower or any Lender the Administrative Agent becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics Average HERS Score as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) andand the Administrative Agent notifies the Borrower thereof, in the case (B) any Lender becomes aware of any Lender, Sustainability Certificate Inaccuracy and such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, delivers a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (BC) the Borrowers and the Lenders agree that there was Borrower becomes aware of a Pricing Sustainability Certificate Inaccuracy at and delivers notice thereof to the time of delivery of a Pricing CertificateAdministrative Agent, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, Sustainability Fee Adjustment or the KPI Metrics Average HERS Score would have resulted in no adjustment or an increase in the Applicable Percentages Margin or Revolving Facility Fee Rate for any applicable period, then (x) commencing on the first Business Day following delivery of a corrected Sustainability Certificate to the Administrative Agent, the Applicable Margin and Revolving Loans incurred by DEI Facility Fee Rate shall be adjusted to reflect such corrected calculations of the Sustainability Rate Adjustment and the Facility Sustainability Fee for Commitments under Adjustment and (y) the DEI Sublimit for any period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have agreed in writing has determined that there waswas (regardless of whether or not the Borrower notifies the Administrative Agent of such Sustainability Certificate Inaccuracy), a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that that, notwithstanding anything in Section 10.1 to the contrary, any Pricing Sustainability Certificate Inaccuracy (in and of itself, and excluding any failure to repay to the Administrative Agent (for the account of the applicable Lenders or the applicable Issuing Banks, as the case may be) any amounts owing as a result of Sustainability Certificate Inaccuracy in accordance with this Section 1.6(d)) shall not constitute a Default or Event of Default; provided, that, Default or otherwise result in the Borrowers comply with failure of any condition precedent to any advance or the terms issuance of this Section 1.7 with respect to such Pricing Certificate Inaccuracyany Letter of Credit. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (ax) any additional amounts required to be paid pursuant the immediate preceding to this paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (I) a written demand is made for such payment by the Administrative Agent in accordance with this paragraph or (II) ten (10) Business Days after the Borrower has received written notice of, or has determined that there was, a Sustainability Certificate Inaccuracy (such paragraphearlier date, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) the “Certificate Inaccuracy Payment Date”), and (cy) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at be subject to the rate provided remedies set forth in Section 3.1(b) 10.2 prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (ge) As soon as available and in any event within 120 150 days following the end of each calendar fiscal year of the Parent (commencing with the calendar fiscal year ending December 31, 20212024), the Borrower shall deliver to the Administrative Agent (for distribution to each of the Lenders) a Pricing Sustainability Certificate for the most recently-recently ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, notwithstanding anything in Section 10.1 to the contrary, for any calendar year Reference Year the Borrowers Borrower may elect not to deliver a Pricing Certificate, Sustainability Certificate and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 120-150 day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c1.6(b)). (f) Upon or at any time after the occurrence of a Declassification Event, the Administrative Agent may, and shall if so directed by the Requisite Lenders, with immediate effect, declassify the Commitments, Loans and all other extensions of credit hereunder as “sustainability-linked” (the date of such declassification being the “Declassification Date”). Immediately, automatically and irrevocably upon the Declassification Date: (i) any applicable Sustainability Fee Adjustment or Sustainability Rate Adjustment shall cease to apply as of such date, and no Sustainability Fee Adjustment or Sustainability Rate Adjustment shall apply at any time thereafter, (ii) the terms and provisions of this Section 1.6 (other than Section 1.6(d) and any related notice obligation under Section 8.4(t)), Section 6.1(aa) and Section 7.17 shall be deemed null and void and shall cease to apply, and (iii) the Parent and the Borrower must promptly retract any and all external communications, publications or other disclosures that refer to this Agreement or the Loans or Commitments hereunder as “sustainability-linked”, “ESG-linked”, “KPI-Linked”, “green loans”, “sustainable”, or any other similar description. Following the Declassification Date, (x) this Agreement and the Loans and Commitments hereunder may not be “re-classified” as “sustainability-linked”, and the adjustments and provisions referred to in the immediately preceding clauses (i) and (ii) may not be reinstated, and (y) Parent and Borrower shall not, and shall ensure that their respective Affiliates do not, publish, communicate or otherwise make any disclosure that references this Agreement or the Loans or Commitments hereunder as “sustainability-linked”, “ESG-linked”, “KPI-Linked”, “green loans”, “sustainable”, or any other similar description. (g) The Borrower shall, as soon as reasonably practicable after a Sustainability Amendment Event (and in any event within thirty (30) days following the occurrence of such Sustainability Amendment Event), provide details to the Administrative Agent and the Sustainability Agent of the effect such event could reasonably be expected to have on HERS Score methodology, any HERS Threshold or HERS Target, the Sustainability Fee Adjustment, the Sustainability Rate Adjustment and/or any Sustainability-Related Information and, if relevant, propose amendments to any such methodology or terms to eliminate, accommodate or otherwise take into account the effect of such Sustainability Amendment Event on the terms of this Agreement. Upon the occurrence of a Sustainability Amendment Event, the Borrower, the Sustainability Agent and the Administrative Agent shall enter into good faith negotiations with a view to agreeing on such amendments to HERS Score methodology, any HERS Threshold or HERS Target, the Sustainability Fee Adjustment, the Sustainability Rate Adjustment and/or any related terms and provisions of this Agreement as are necessary for the purposes of eliminating, accommodating or otherwise taking into account the effect of such Sustainability Amendment Event on the terms of this Agreement (any such amendment, a “Sustainability Amendment”). (h) In Notwithstanding anything to the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWcontrary contained herein, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold Prior Sustainability Adjustment shall be adjusted to account for such acquisition or divestiture such that determined in accordance with the Renewable Energy Generation Capacity Percentage Target definitions of “Applicable Sustainability Adjustment”, “Sustainability Adjustment Date”, “Sustainability Adjustment Period” and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner “Sustainability Rating” (and methodology that are the same as those any other defined term used in determining any such definition), in each case, as set forth in the original Renewable Energy Generation Capacity Percentage Target and Prior Credit Agreement (collectively, the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts“Prior Sustainability Provisions”), and, if Lenders constituting Required Lenders have not objected without limiting, modifying or otherwise affecting any term or provision set forth in this Agreement, the Prior Sustainability Provisions are incorporated herein by reference, mutatis mutandis, solely for purposes of determining the Prior Sustainability Adjustment; provided, however, that notwithstanding anything to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such deliverythe contrary in the Prior Agreement, then Exhibit 1.7-1 Wxxxx Fargo Securities, LLC shall be deemed amended to reflect be the “Sustainability Agent” as such adjusted Renewable Energy Generation Capacity Percentage Target term is used in any Prior Sustainability Provision. Immediately and Renewable Energy Generation Capacity Percentage Thresholdautomatically upon the Prior Sustainability End Date, the Prior Sustainability Provisions shall be deemed null and void for all purposes hereunder, and no Prior Sustainability Adjustment shall apply.

Appears in 1 contract

Samples: Credit Agreement (American Homes 4 Rent, L.P.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate pursuant to the Administrative Agent Section 5.14 in respect of the its most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofAnnual Period, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Pricing Certificate Date for such Lender of a Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations calculation of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each , and (B) each change in the Applicable Percentages Margin resulting from a Pricing Certificate shall be in force on any the first date of the Interest Period immediately following the applicable Sustainability Pricing Adjustment Date shall be effective during or, if the period commencing on and including such Sustainability Pricing Adjustment Date is the same as the commencement of an Interest Period, on said date, and ending shall end the last day of the Interest Period on which the date immediately preceding the next Sustainability Pricing Adjustment Date. (b) For the avoidance of doubt, only one Pricing Certificate Date occurred (or, in the case of non-delivery of a Pricing Certificate, zero the last day of the Interest Period in which said Pricing CertificatesCertificate could have been delivered under Section 5.14). (b) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI will never be reduced or increased by more than 0.05% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on any Sustainability Pricing Adjustment Date. For the avoidance of doubtdoubt (i) the Borrower may only deliver a Pricing Certificate with respect to any Annual Period, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on and (ii) any Sustainability Pricing Margin Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Datebe iterative and not cumulative year after year. (c) It is hereby understood and agreed that if no such If the Borrower fails to provide a Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth indicated in this Section 1.75.14, the Sustainability Margin Adjustment will shall be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% five (5) basis points, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 5.14 and continuing shall be in force as of the first day of the Interest Period immediately following the date on which the Pricing Certificate should have been delivered and until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Lender and a new Applicable Margin is determined pursuant to Section 2.10(a) above, provided that pending delivery of a Pricing Adjustment DateCertificate no Default or Event of Default shall occur. (d) If (i)(Ai) a (a) any of the Borrower or any the Lender becomes aware of identifies any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a on the applicable Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in if it was the case Borrower who had knowledge of any Lender, such Lender deliversthe Pricing Certificate Inaccuracy, not later than 10 thirty (30) Business Days after obtaining knowledge thereof, thereof delivers a written notice to the Administrative Agent Lender describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the Borrowers)detail, or (Bb) the Borrowers Borrower and the Lenders Lender agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a the relevant Pricing CertificateCertificate and, and (ii) a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages Margin for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any such period, then the Borrowers Borrower shall be obligated required to pay to the Administrative Agent for the account of the applicable LendersLender, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), automatically and without further action by the Administrative Agent or any Lender), but in any no event within 10 in less than ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of to: (1x) the amount of interest and fees that should have been paid for such period over period, pursuant to the proper calculation, less (2y) the amount of interest and fees actually paid for such period. If a the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a the proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages Margin for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any such period, then, upon receipt by the Administrative Agent Lender of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent Lender of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply with the terms of this Section 1.7 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Cemex Sab De Cv)

Sustainability Adjustments. (a) DEI may deliver Following the date on which Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofended December 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2024, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Margin shall be increased or decreased (or neither increased nor decreasednot adjusted), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreasednot adjusted), as applicable, pursuant to the Sustainability Facility Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined and applied as of the fifth Business Banking Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 1.08(f) based upon the KPI Metrics for such calendar year Metric set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment in therein (such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar yearday, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Margin and Facility Fee resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 1.08(f)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Margin will never be reduced or increased by more than 0.050.04% and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%, pursuant to the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Margin or such Facility Fee by reason of meeting one or several the KPI Metrics Metric in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI Borrower with regard to a particular calendar year within the period set forth in this Section 1.71.08(f), the Sustainability Margin Adjustment will be positive 0.050.04% and the Sustainability Facility Fee Adjustment will be positive 0.01% commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 1.08(f) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable calendar year. (d) If (i)(A) a Borrower or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Metric as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, and such Lender Bank delivers, not later than 10 Business Banking Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersBorrower), or (B) the Borrowers Borrower becomes aware of a Pricing Certificate Inaccuracy and the Lenders Borrower and the Administrative Agent shall mutually agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) in either case, a proper calculation of the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment or the KPI Metrics Metric would have resulted in no adjustment or an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Facility Fee for Commitments under the DEI Sublimit for any period, (x) commencing on the Borrowers fifth Banking Day following delivery of a corrected Sustainability Certificate to the Administrative Agent, the Applicable Margin and Facility Fee shall be adjusted to reflect such corrected calculations of the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment and (y) the Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersBanks or the applicable Fronting Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Bank or any LenderFronting Bank), but in any event within 10 Business Banking Days after the Borrowers have Borrower has received written notice ofof (in the case of clause (d)(i)(A) above), or have has agreed in writing that there waswas (in the case of clause (d)(i)(B) above), a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI Metrics Metric would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Margin or Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI MetricsMetric, as applicable), commencing on the Business 10th Banking Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Margin and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted (but only with respect to periods commencing after such 10th Banking Day) to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Facility Fee Adjustment or the KPI MetricsMetric, as applicable. (e) , for all periods occurring no sooner than 10 Banking Days after receipt by the Administrative Agent of such notice. For the avoidance of any doubt, the parties agree that any such adjustment to reflect a decrease in the Applicable Margin or Facility Fee for any period shall only be effective on a prospective basis and shall not require any adjustments to amounts previously paid by the Borrower prior to the discovery of a Pricing Certificate Inaccuracy. It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any letter of credit; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 1.08(d) and Section 6.09(17) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Banking Days after the Borrower has received written notice of (in the case of clause (d)(i)(A) above), or has agreed in writing that there was (in the case of clause (d)(i)(B) above), a written demand is made for Pricing Certificate Inaccuracy (such payment by date, the Administrative Agent in accordance with such paragraph“Certificate Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have (x) any duty to ascertain, inquire into or otherwise independently verify any sustainability related information or any other information or materials provided by the Borrower and used in connection with the sustainability provisions of the credit facility described in this Agreement, including with respect to the applicable KPI Metrics nor (y) any responsibility for (or liability in respect of) the completeness or accuracy of such information. Each party hereto hereby agrees that neither the Administrative Agent nor the Sustainability Structuring Agent nor any Lead Arranger shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Facility Fee Adjustment or any Sustainability Fee Margin Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate or notice as to a Pricing Certificate Inaccuracy (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificatecertificate or notice, without further inquiry). (gf) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 20212024), Borrower shall deliver a Pricing Certificate to the Administrative Agent (and the Administrative Agent shall promptly provide a copy to each Bank) for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7year; provided, that, for any calendar year the Borrowers Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and the Sustainability Fee Adjustment being applied as set forth in Section 1.7(c1.08(c)). In the event (i) Borrower’s fiscal year is changed to a non-calendar year fiscal year or (ii) Borrower elects, in accordance with applicable rules, regulations or guidance of the SEC, to disclose its annual sustainability reporting with or following the filing of its quarterly report on Form 10-Q for the second quarter of its fiscal year, Borrower will be permitted to adjust the timing of delivery of the Pricing Certificate at its election to be coordinated with fiscal year and periodic reporting schedule. (g) If, after the date hereof, there occurs any Sustainability Recalculation Event, and either (i) the Borrower notifies the Administrative Agent in writing that the Borrower requests an amendment to any provision hereof to eliminate, accommodate or otherwise take into account the effect of such Sustainability Recalculation Event, or (ii) the Administrative Agent notifies the Borrower that the Required Banks request an amendment to any provision or provisions hereof for such purpose (it being understood and agreed that any such notice may be given before or after such Sustainability Recalculation Event has occurred), then (A) the Borrower and the Administrative Agent shall negotiate in good faith to amend the provisions hereof to eliminate, accommodate or otherwise take into account the effect of such Sustainability Recalculation Event for the period from and after the occurrence of such Sustainability Recalculation Event, and (B) the provisions of this Agreement shall be interpreted on the basis of the provisions in effect and applied immediately prior to such Sustainability Recalculation Event for a period of not more than 30 days following the date of any such notice (unless the provisions hereof shall have been amended in accordance herewith or such notice shall have been withdrawn). If, after 30 days following the date of any such notice, the consent of the Borrower, the Administrative Agent and the requisite Banks under Section 12.02 has not been obtained (provided that adjustments to the KPI Target, KPI Threshold, Standard for Sustainability Reporting and/or Sustainability Table in connection with a Sustainability Recalculation Event shall not be deemed to be an amendment described in clause (1) of Section 12.02), (x) on the one-year anniversary of the date a delivered Pricing Certificate was most recently delivered or due and not delivered, as applicable, the Applicable Margin shall be calculated without regard to this Section 1.08, which Section and related definitions shall have no further force or effect, and (y) thereafter, no party to this Agreement shall make any public or private representations or description of the credit facility described in this Agreement as a sustainability-linked loan. (h) The Borrower reserves the right to adjust the baseline set forth in the Sustainability Table, in consultation with the Sustainability Structuring Agent, in alignment with mandatory regulatory disclosure requirements and/or a new Science-Based Target (SBTi) aligned goal but the Sustainability Table shall maintain the 2.5% annual improvement for each year as the KPI Target and 1% annual improvement for each year as the KPI Threshold, in each case, from the 2022 baseline as so adjusted. In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MWthat the baseline is so adjusted, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to Borrower, the Administrative Agent and the Lenders a certificate that (i) calculates Sustainability Structuring Agent shall amend the Sustainability Table in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target accordance with the foregoing sentence, and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected the Administrative Agent shall provide the amended Sustainability Table to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdthe Banks.

Appears in 1 contract

Samples: Revolving Credit Agreement (Vornado Realty Lp)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Borrower provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, each of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.02(e) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Daycalculations, as applicable, each a therein (such day, the “Sustainability Pricing Adjustment Date”). Each ) and (B) each change in the Applicable Percentages on any Sustainability Rate and the Commitment Fee resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 6.02(e)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05% 2.5 basis points (.025%) and that the Applicable Percentage for the Facility Commitment Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.010.5 basis points (0.005%), in each case pursuant to the Sustainability Margin Rate Adjustment and or the Sustainability Fee Adjustment, respectivelyas applicable, on from the Applicable Rate and Commitment Fee that would have applied in the absence of such adjustments during any Sustainability Pricing Adjustment Datefiscal year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans Rate or such Facility Commitment Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment Dateadjustment is due to take place. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI the Borrower within the period set forth in this Section 1.76.02(e), the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% 0.5 basis points (0.005%) and the Sustainability Rate Adjustment will be positive 2.5 basis points (0.025%) commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of such period Section 6.02(e) and continuing until the day immediately prior Borrower delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(Ai) a the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in and the case of any Lender, Borrower or such Lender delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersBorrower), or (Bii) the Borrowers Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and then, in each case, as applicable, (iiA) if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit for any such period, the Borrowers Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent Agent, any Lender or any LenderL/C Issuer), but in any event within 10 ten (10) Business Days after the Borrowers have Borrower has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1x) the amount of interest and fees that should have been paid for such period over (2y) the amount of interest and fees actually paid for such period. If a period and (B) if the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the first (1st) Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI Rate and the Facility Commitment Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Rate Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Borrower complies with the terms of this Section 1.7 2.18(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), (ai) any additional amounts required to be paid pursuant the immediate preceding paragraph clause (d) shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraphclause (d), (bii) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (ciii) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any the Borrower of any Sustainability Margin Fee Adjustment or any Sustainability Fee Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (Cisco Systems, Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereof, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar fiscal year, (i) the Applicable Percentage for Margin and the Revolving Loans incurred by DEI Letter of Credit Fee Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, Certificate and (ii) the Applicable Percentage for the applicable Facility Fee for Commitments under Rate set forth in the DEI Sublimit Pricing Schedule shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Fee Adjustment as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 6.02(d) based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in Adjustment, as applicable, therein (such KPI Metrics Certificate day, the “ ”) and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Margin, the Facility Fee Rate and the Letter of Credit Fee Rate resulting from a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment DateDate (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 6.02(d)). (b) For the avoidance of doubt, only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar fiscal year. It is further understood and agreed that that, subject to the second to last paragraph of Section 10.01, the Applicable Percentage for Revolving Loans incurred by DEI Margin and Letter of Credit Fee Rate will never be reduced or increased by more than 0.05% 4.0 basis points (such eight basis point spread, the “ ”) pursuant to the Sustainability Margin Adjustment and that the Applicable Percentage for the Facility Fee for Commitments under the DEI Sublimit Rate will never be reduced or increased by more than 0.01%1.0 basis point (such two basis point spread, the “ Basis Point Sustainability Fee ”) pursuant to the Sustainability Margin Adjustment and the Sustainability Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datefiscal year. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Margin, Facility Fee Rate or Letter of Credit Fee Rate by reason of meeting one or several both KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date Each applicable adjustment shall only apply for the period until the date immediately preceding on which the next Sustainability Pricing Adjustment DateCertificate is delivered or required to be delivered pursuant to Section 6.02(d). (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period set forth in this Company by the time required pursuant to Section 1.76.02(d), (i) the Sustainability Fee Adjustment will be positive 1.0 basis points and (ii) the Sustainability Margin Adjustment will be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% 4.0 basis points, commencing on the last day of such period Pricing Certificate was required to have been delivered and continuing until the day immediately prior Company delivers a Pricing Certificate for the applicable fiscal year to the next Sustainability Pricing Adjustment DateAdministrative Agent. (d) If (i)(A) a Borrower the Company or any Lender Bank becomes aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Fee Adjustment Adjustment, or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any LenderBank, such Lender Bank delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender Bank and the BorrowersCompany), or (B) the Borrowers Company and the Lenders Banks agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and Margin, the Facility Fee for Commitments under the DEI Sublimit Rate or Letter of Credit Fee Rate for any applicable period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, Banks promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsDebtor Relief Laws), automatically and without further action by the Administrative Agent or any LenderBank), but in any event within 10 Business Days after the Borrowers have Company has received written notice of, or have has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower the Company becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and Margin, the Facility Fee for Commitments under Rate and the DEI Sublimit Letter of Credit Fee Rate for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers Company of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and Margin, the Facility Fee for Commitments under Rate and the DEI Sublimit Letter of Credit Fee Rate shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, the Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) . It is understood and agreed that any Pricing Certificate Inaccuracy with respect to any applicable period shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Company complied with the terms of this Section 1.7 2.17(d) with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower the Company under the Bankruptcy Code (or any comparable event under non-non U.S. debtor relief lawsDebtor Relief Laws), (a) any additional amounts required to be paid pursuant the immediate preceding paragraph shall not be due and payable until the date that is 10 Business Days after a written demand is made for such payment by the Administrative Agent in accordance with such paragraph, (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand or shall accrue interest at the rate provided in Section 3.1(b) Default Rate prior to the date that is 10 Business Days after such a demand. (fe) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Adjustment or any Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (g) As soon as available and in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a business, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate that (i) calculates in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold and (ii) restates Exhibit 1.7-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold.

Appears in 1 contract

Samples: Credit Agreement (General Mills Inc)

Sustainability Adjustments. (a) DEI may deliver a Pricing Certificate to Effective as of the November 1 following receipt by the Administrative Agent of a Sustainability Certificate delivered pursuant to Section 2.21(e) (such day, the “Sustainability Pricing Adjustment Date”) in respect of the most recently ended calendar year on any date prior to Reference Year, commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofReference Year ending December 31, each a “Pricing Certificate Date”), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year2022, (i) the Applicable Percentage Rate for the Revolving Loans incurred by DEI shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Sustainability Certificate, and (ii) the Applicable Percentage Rate for the Facility Fee for Commitments under the DEI Sublimit Commitment Fees shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Commitment Fee Adjustment as set forth in such KPI Metrics Sustainability Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined as of the fifth Business Day following the Pricing Certificate Date for such Pricing Certificate based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in such KPI Metrics Certificate and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Rate for Loans and the Applicable Rate for Commitment Fees resulting from a Sustainability Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date. (b) In the event the Company does not deliver a Sustainability Certificate within the period set forth in Section 2.21(e) or any Sustainability Certificate shall be incomplete and fail to include the Sustainability Rate Adjustment and the Sustainability Commitment Fee Adjustment and calculations in reasonable detail of the KPI Metrics, (i) for the Reference Year ending December 31, 2022, the Sustainability Rate Adjustment will be positive 0.04% and the Sustainability Commitment Fee Adjustment will be positive 0.008% and (ii) for any Reference Year ending thereafter, the Sustainability Rate Adjustment will be positive 0.05% and the Sustainability Commitment Fee Adjustment will be positive 0.01%, in each case, commencing on the fifth Business Day following the last day such Sustainability Certificate should have been delivered pursuant to the terms of Section 2.21(e) and continuing until the fifth Business Day following receipt by the Administrative Agent of a complete Sustainability Certificate for such Reference Year. (c) For the avoidance of doubt, only one Pricing Sustainability Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar Reference Year and any adjustment to the Applicable Rate for Loans 70 and/or the Applicable Rate for Commitment Fees by reference to any of the KPI Metrics in any year shall not be cumulative year-over-year. Each applicable adjustment shall only apply until the date on which the next adjustment is to occur. It is further understood and agreed that (i) the Applicable Percentage Rate for Revolving Loans incurred will never be reduced or increased by DEI more than 0.04% and that the Applicable Rate for Commitment Fees will never be reduced or increased by more than 0.008% for the Reference Year ending December 31, 2022, and (ii) the Applicable Rate for Loans will never be reduced or increased by more than 0.05% and that the Applicable Percentage Rate for the Facility Fee for Commitments under the DEI Sublimit Commitment Fees will never be reduced or increased by more than 0.01%% for any Reference Year ending thereafter, in each case, pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment; provided that, respectivelyand notwithstanding anything to the contrary in this Agreement (including any provision of Section 9.02(b) requiring the consent of “each directly and adversely affected Lender” for reductions in interest rates), on any the definitions of “KPI 1”, “KPI 1 Applicable Rate Adjustment Amount”, “KPI 1 Commitment Fee Adjustment Amount”, “ KPI 1 Target A”, “KPI 1 Threshold A”, “KPI 2”, “KPI 2 Applicable Rate Adjustment Amount”, “KPI 2 Commitment Fee Adjustment Amount”, “ KPI 2 Target B”, and the Sustainability Pricing Adjustment Date. For Table may be amended or otherwise modified with the consent of the Company, the Administrative Agent and the Required Lenders (in consultation with the Sustainability Structuring Agent); provided, however, for the avoidance of doubt, any adjustment changes to the Applicable Percentages Rate for such Revolving Loans or such Facility Fee by reason of meeting one or several KPI Metrics in any calendar year shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Rate Adjustment Date shall only apply and the Applicable Rate for Commitment Fees pursuant to the period until Sustainability Commitment Fee Adjustment in excess of the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such Pricing Certificate with respect to a calendar year is delivered by DEI within the period amounts set forth in this Section 1.7, the Sustainability Margin Adjustment will above shall be positive 0.05% and the Sustainability Fee Adjustment will be positive 0.01% commencing on the last day of such period and continuing until the day immediately prior subject to the next Sustainability Pricing Adjustment Dateconsent of each directly and adversely affected Lender in accordance with Section 9.02(b). (d) If (i)(A) a Borrower the Administrative Agent, the Sustainability Structuring Agent or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics as reported in a Pricing any Sustainability Certificate (any such material inaccuracy, a “Pricing Sustainability Certificate Inaccuracy”) andand the Administrative Agent shall notify the Sustainability Structuring Agent and the Lenders, in or the case of any Sustainability Structuring Agent or such Lender, such Lender as applicable, delivers, not later than 10 ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Sustainability Certificate Inaccuracy in reasonable detail (which description shall be shared with each Lender and the BorrowersCompany, and, as applicable, the Sustainability Structuring Agent), or (B) the Borrowers Company becomes aware of a Sustainability Certificate Inaccuracy and delivers notice thereof to the Administrative Agent and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing CertificateSustainability Structuring Agent, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in no adjustment or an increase in the Applicable Percentages Rate for Loans and/or the Revolving Loans incurred by DEI Applicable Rate for Commitment Fees for any applicable period, (x) commencing on the fifth Business Day following delivery of a corrected Sustainability Certificate to the Administrative Agent and the Facility Fee for Commitments under the DEI Sublimit for any periodSustainability Structuring Agent, the Borrowers Applicable Rate for Loans and/or the Applicable Rate for Commitment Fees shall be adjusted to reflect such corrected calculations of the Sustainability Rate Adjustment and the Sustainability Commitment Fee Adjustment and (y) the Company shall be obligated to pay to the Administrative Agent for the account of the applicable LendersLenders or the applicable Issuing Banks, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Company under any Borrower under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, automatically and without further action by the Administrative Agent Agent, any Lender or any LenderIssuing Bank), but in any event within 10 ten (10) Business Days after the Borrowers have Company has received written notice of, or have agreed in writing has 71 determined that there was, a Pricing Sustainability Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been paid for such period over (2) the amount of interest and fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Sustainability Certificate Inaccuracy shall not constitute a Default or Event of DefaultDefault or otherwise result in the failure of any condition precedent to any advance or the issuance of any Letter of Credit; provided, that, the Borrowers comply Company complies with the terms of this Section 1.7 2.21(d) with respect to such Pricing Sustainability Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief laws)Debtor Relief Laws, (ax) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (I) a written demand is made for such payment by the Administrative Agent in accordance with such paragraphparagraph or (II) 10 Business Days after the Company has received written notice of, or has determined that there was, a Sustainability Certificate Inaccuracy (such date, the “Certificate Inaccuracy Payment Date”), (by) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default or Event of Default (whether retroactively or otherwise) and (cz) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the default rate provided in pursuant to Section 3.1(b) 2.12 prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (f) Each party hereto hereby agrees that neither the Administrative Agent nor the Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower of any Sustainability Margin Adjustment or Sustainability Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (ge) As soon as available and in any event within 120 days following by the October 31st after the end of each calendar fiscal year of the Company (commencing with the calendar fiscal year ending December 31, 20212022), the Company shall deliver to the Administrative Agent, the Sustainability Structuring Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Required Lenders (in consultation with the Sustainability Structuring Agent) a Pricing Sustainability Certificate for the most recently-ended calendar year may be provided by DEI as set forth in this Section 1.7Reference Year; provided, that, for any calendar year Reference Year the Borrowers Company may elect not to deliver a Pricing Sustainability Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Sustainability Certificate by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Rate Adjustment being applied as set forth in Section 1.7(c2.21(b)). In the event the Company’s fiscal year is changed to a non-calendar year fiscal year, the Company will be permitted to adjust the timing of delivery of the Sustainability Certificate at its election in a manner intended to maintain consistency with the foregoing. (hf) In If, after the event Borrowers date hereof, there occurs any material acquisition or any of their Subsidiaries acquire divestiture, extraordinary or divest extreme event, material change in the regulatory environment, or otherwise (a business“Sustainability Modification Event”), facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to Company notifies the Administrative Agent and the Sustainability Structuring Agent in writing that the Company requests an adjustment to Schedule 2.21 or an amendment to any provision hereof to account for the effect of such Sustainability Modification Event (or if the Administrative Agent notifies the Company that the Required Lenders a certificate that request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such Sustainability Modification Event, then (i) calculates the Company and the Administrative Agent (in reasonable detail consultation with the Sustainability Structuring Agent) shall negotiate in good faith to agree to adjust to Schedule 2.21 or amend the provisions hereof to account for the effect of such adjusted Renewable Energy Generation Capacity Percentage Target Sustainability Modification Event, and Renewable Energy Generation Capacity Percentage Threshold the provisions of this Agreement shall be interpreted on the basis of the provisions in effect and applied immediately prior to such Sustainability Modification Event for a period of not more than 30 days (unless the provisions hereof shall have been amended in accordance herewith or such notice shall have been withdrawn). If, after 30 days following any such notice, the agreement to such amendment of the 72 Company, the Administrative Agent and the requisite Lenders under Section 9.02(b) has not been obtained, there will cease to be any Sustainability Rate Adjustment and any Sustainability Commitment Fee Adjustment until such time as the parties hereto can agree upon any such adjustments in accordance with the terms hereof and during such period (i) the credit facility described in this Agreement shall cease to be a sustainability-linked loan and (ii) restates Exhibit 1.7no party to this Agreement shall, without the prior written consent of the Administrative Agent, the Company and the Sustainability Structuring Agent, make any public or private representations or description of the credit facility described in this Agreement as a sustainability-1 with such adjusted amounts, and, if Lenders constituting Required Lenders have not objected to such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdlinked loan.

Appears in 1 contract

Samples: Credit Agreement (Essential Utilities, Inc.)

Sustainability Adjustments. (a) DEI may deliver Following the date on which the Company provides a Pricing Certificate to the Administrative Agent in respect of the most recently ended calendar year on any date prior to (commencing with the date that is 120 days following the last day of such calendar year (the date the Administrative Agent’s receipt thereofending December 31, each a “Pricing Certificate Date”2022), which DEI may or may not do, in its sole discretion. If DEI so delivers a Pricing Certificate in respect of a calendar year, (i) the Applicable Percentage for the Revolving Loans incurred by DEI Rate shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to (i) in the case of the interest rate spreads, the Sustainability Margin Rate Adjustment as set forth in the KPI Metrics Certificate delivered with such Pricing Certificate, and (ii) in the Applicable Percentage for case of the Facility Fee for Commitments under the DEI Sublimit shall be increased or decreased (or neither increased nor decreased)commitment fees, as applicable, pursuant to the Sustainability Commitment Fee Adjustment Adjustment, in each case, as set forth in such KPI Metrics Pricing Certificate. If no Pricing Certificate is so delivered in respect of a calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment in respect of such calendar year shall be determined pursuant to Section 1.7(c). For purposes of the foregoing, (A) if a Pricing Certificate is so delivered for any calendar year, the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment shall be determined applied as of the fifth Business Day (such day, the “Sustainability Pricing Adjustment Date”) following receipt by the Administrative Agent of a Pricing Certificate Date for such Pricing Certificate delivered pursuant to Section 5.01(d), based upon the KPI Metrics for such calendar year set forth in the KPI Metrics Certificate delivered with such Pricing Certificate and the calculations of the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment set forth in such KPI Metrics Certificate Pricing Certificate, and (B) if no Pricing Certificate is so delivered in respect of such calendar year, the Sustainability Margin Adjustment and the Sustainability Fee Adjustment shall be determined pursuant to Section 1.7(c) effective as of the Business Day immediately following the date that is 120 days following the last day of such calendar year (such fifth (5th) Business Day or such Business Day, as applicable, each a “Sustainability Pricing Adjustment Date”). Each change in the Applicable Percentages on any Sustainability Rate resulting from the delivery of a Pricing Adjustment Date Certificate shall be effective during the period commencing on and including such the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment DateDate (or, in the event the Company fails to deliver a Pricing Certificate in accordance with Section 5.01(d), the last day such Pricing Certificate could have been delivered pursuant to such Section). (b) For the avoidance of doubt, It is understood and agreed only one Pricing Certificate (or, in the case of non-delivery of a Pricing Certificate, zero Pricing Certificates) may be delivered in respect of any calendar year. It is further understood and agreed that the Applicable Percentage for Revolving Loans incurred by DEI Rate will never be reduced or increased by more than 0.05(i) in the case of the interest rate spreads, 0.050% and that (ii) in the Applicable Percentage for case of the Facility Fee for Commitments under the DEI Sublimit will never be reduced or increased by more than 0.01%commitment fees, 0.010% pursuant to the Sustainability Margin Rate Adjustment and the Sustainability Commitment Fee Adjustment, respectively, on during any Sustainability Pricing Adjustment Datecalendar year and that at no time shall the Applicable Rate, whether with respect to the interest rate spreads or the commitments fees, be reduced below zero. For the avoidance of doubt, any adjustment to the Applicable Percentages for such Revolving Loans or such Facility Sustainability Rate Adjustment and the Sustainability Commitment Fee by reason of meeting one or several KPI Metrics in any calendar year Adjustment shall not be cumulative year-over-year. The adjustments pursuant to this Section made on any Sustainability Pricing Adjustment Date shall only apply for the period until the date immediately preceding the next Sustainability Pricing Adjustment Date. (c) It is hereby understood and agreed that if no such In the event the Company fails to deliver a Pricing Certificate in accordance with Section 5.01(d) with respect to a particular calendar year is delivered by DEI within the period set forth in this Section 1.7year, the Sustainability Margin Rate Adjustment will be positive 0.050.050% and the Sustainability Commitment Fee Adjustment will be positive 0.01% 0.010%, commencing on the last day of such period Pricing Certificate could have been delivered pursuant to such Section and continuing until the day immediately prior Company delivers a Pricing Certificate to the next Sustainability Pricing Adjustment DateAdministrative Agent for the applicable calendar year. (d) If (i)(A) a Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in the case of any Lender, and such Lender delivers, not later than 10 Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be shared with provided to each Lender and the BorrowersCompany), or (B) the Borrowers Company becomes aware of a Pricing Certificate Inaccuracy and the Lenders Company and the Administrative Agent shall mutually agree that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Rate Adjustment, the Sustainability Commitment Fee Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit Rate for any period, the Borrowers Company shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsbankruptcy or insolvency laws of any other jurisdiction), automatically and without further action by the Administrative Agent or any Lender), but in any event within 10 Business Days after the Borrowers have Company has received written notice ofof (in the case of clause (A) above), or have has agreed in writing that there waswas (in the case of clause (B) above), a Pricing Certificate Inaccuracy, an amount equal to the excess of (1) the amount of interest and commitment fees that should have been paid for such period over (2) the amount of interest and commitment fees actually paid for such period. If a Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit for any period, then, upon receipt by the Administrative Agent of notice from the Borrowers of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Percentages for the Revolving Loans incurred by DEI and the Facility Fee for Commitments under the DEI Sublimit shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, Sustainability Fee Adjustment or the KPI Metrics, as applicable. (e) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrowers comply Company complies with the terms of this Section 1.7 2.20 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to a Borrower the Company under the Bankruptcy Code (or any comparable event under non-U.S. debtor relief lawsbankruptcy or insolvency laws of any other jurisdiction), (a) any additional amounts required to be paid pursuant to the immediate immediately preceding paragraph shall not be due and payable until the date that is 10 Business Days after earlier to occur of (i) a written demand is made for such payment by the Administrative Agent in accordance with such paragraphparagraph or (ii) 10 Business Days after the Company has received written notice of (in the case of clause (A) above), or has agreed in writing that there was (in the case of clause (B) above), a Pricing Certificate Inaccuracy (such date, the “Certificate Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to or upon such demand for payment by Administrative Agent the Certificate Inaccuracy Payment Date shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue prior to the date that is 10 Business Days after such a demand Certificate Inaccuracy Payment Date or shall accrue interest at the default rate provided in pursuant to Section 3.1(b2.10(d) prior to the date that is 10 Business Days after such a demandCertificate Inaccuracy Payment Date. (fe) Each party hereto hereby agrees that neither the Administrative Sustainability Structuring Agent nor the Co-Sustainability Structuring Administrative Agent shall have any responsibility for (or liability any Liability in respect of) reviewing, auditing or otherwise evaluating any calculation by any Borrower the Company of any Sustainability Margin Rate Adjustment or any Sustainability Commitment Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent and the Co-Sustainability Structuring Agent may rely conclusively on any such certificate, without further inquiry). (gf) As soon as available If a Sustainability Recalculation Event shall have occurred after the Closing Date, upon the written request of the Company or the Required Lenders, the Required Lenders and the Company shall negotiate in good faith to amend the Sustainability Table, including the KPI Metrics Targets and the KPI Metrics Thresholds set forth therein, to the extent implicated by such Sustainability Recalculation Event and, notwithstanding anything to the contrary in Section 9.02, any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 2021), a Pricing Certificate for the most recently-ended calendar year such amendment may be provided effected by DEI as set forth an agreement in this Section 1.7; provided, that, for any calendar year the Borrowers may elect not to deliver a Pricing Certificate, such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate writing entered into by the end of such 120-day period shall result in the Sustainability Margin Adjustment and Sustainability Fee Adjustment being applied as set forth in Section 1.7(c). (h) In the event Borrowers or any of their Subsidiaries acquire or divest a businessCompany, facility or Subsidiary with Capacity in excess of 100MW, the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold shall be adjusted to account for such acquisition or divestiture such that the Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold remain neutral to such acquisition or disposition in a manner and methodology that are the same as those used in determining the original Renewable Energy Generation Capacity Percentage Target and the Renewable Energy Generation Capacity Percentage Threshold. The Borrowers shall deliver to the Administrative Agent and the Lenders a certificate Required Lenders; provided that (i) calculates prior to the effectiveness of any such amendment, the Sustainability Table, the KPI Metrics Targets and the KPI Metrics Thresholds then set forth in reasonable detail such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold this Agreement shall remain in effect and (ii) restates Exhibit 1.7-1 with for the avoidance of doubt, no such adjusted amountsamendment may increase or decrease (if such increase or decrease would have the effect of reducing the Applicable Rate) the percentages set forth in the definition of the terms GHG Emissions Commitment Fee Adjustment Amount, andthe Renewable Electricity Percentage Commitment Fee Adjustment Amount, if Lenders constituting Required Lenders have not objected to such adjusted the GHG Emissions Rate Adjustment Amount or the Renewable Energy Generation Capacity Electricity Percentage Target and Renewable Energy Generation Capacity Percentage Threshold within 5 Business Days Rate Adjustment Amount, in each case, without the prior written consent thereto of such delivery, then Exhibit 1.7-1 shall be deemed amended to reflect such adjusted Renewable Energy Generation Capacity Percentage Target and Renewable Energy Generation Capacity Percentage Thresholdeach Lender.

Appears in 1 contract

Samples: Credit Agreement (Kla Corp)

Draft better contracts in just 5 minutes Get the weekly Law Insider newsletter packed with expert videos, webinars, ebooks, and more!