Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. (ii) In connection with the administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement. (iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent in consultation with, or subject to consent rights of, the Borrower as expressly set forth in this Section 2.10(d), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.10(d). (iv) At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings. (v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Appears in 2 contracts
Sources: Credit Agreement (Surgery Partners, Inc.), Credit Agreement (Surgery Partners, Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document (and any Hedge Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 1.12), upon the occurrence of if a Benchmark Transition Event or an Early Opt-and its related Benchmark Replacement Date have occurred prior to the Reference Time in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace respect of any setting of the then-current Benchmark with Benchmark, then (i) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement. Any ” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (ii) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will become effective replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted date notice of such proposed Benchmark Replacement is provided to the Lenders without any amendment to all affected Lenders and the Borrower to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment Benchmark Replacement from Lenders comprising the Required LendersLenders of each affected Class.
(iib) In connection with Notwithstanding anything to the administration of Term SOFR contrary herein or the implementation and administration of a Benchmark Replacementin any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement and Replacement, (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)1.12, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d).1.12 and/or any component definition used herein
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove any tenor modify the definition of “Interest Period” for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing ofSOFR Borrowing, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request for a SOFR Borrowing into a request for a Borrowing of or conversion to an ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest PeriodBorrowing. During a any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any SOFR Loan is outstanding on the ABRdate of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to Adjusted Term SOFR applicable to such SOFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 1.12, any SOFR Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute an ABR Loan on such day.
(f) The interest rate on a Loan denominated in US Dollar may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, this Section 1.12 provides a mechanism for determining an alternative rate of interest. Without limiting the express terms hereof, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) by any such information source or service. It is understood and agreed that this Section 1.12(f) shall not impair or otherwise limit the express provisions of this Agreement.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Energizer Holdings, Inc.), Credit Agreement (Energizer Holdings, Inc.)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of if a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement its related Benchmark Replacement Date have occurred prior to replace any setting of the then-current Benchmark with Benchmark, then (A) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement. Any ” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (B) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will become effective replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted date notice of such proposed Benchmark Replacement is provided to the Lenders without any amendment to all affected Lenders and the Borrower to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment Benchmark Replacement from Lenders comprising the Required Lenders.
(ii) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrower) to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective (on a prospective basis only) without any further action or consent of any other party to this AgreementAgreement or any other Loan Document; provided, that, with respect to any such amendment effected, the Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
(iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (iA) the implementation of any Benchmark Replacement Replacement, and (iiB) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to paragraph (iv) below and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, Loan Document except, in each case, as expressly required pursuant to this Section 2.10(d)Section.
(iv) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate or based on a term rate and either (including Term SOFR)I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such B▇▇▇▇▇▇▇▇ has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove any tenor of such Benchmark that is unavailable or non-representative tenor; and (B) if a tenor that was removed pursuant to clause (A) above either (I) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) settings and or (iiII) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability PeriodPeriod with respect to a given Benchmark, (i) the Borrower may revoke any pending request for a Borrowing of, Term Loan bearing interest based on or with reference to such Benchmark or conversion to or continuation of Term SOFR Loans bearing interest based on or with reference to such Benchmark to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of Base Rate Loan or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Perioda Base Rate Loan. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRBase Rate.
(vi) As used in this Section:
Appears in 2 contracts
Sources: Credit Agreement (Oshkosh Corp), Credit Agreement (Oshkosh Corp)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.17.2(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower and the Lenders of (iA) any occurrence of a Benchmark Transition Event, (B) the implementation of any Benchmark Replacement and Replacement, (iiC) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.17.2(d) below and (E) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)2.17.2, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)2.17.2.
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate (including the Term SOFRSOFR Screen Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove modify the definition of “Interest Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation borrowing of Term SOFR Loans to be made, converted or continued made during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Appears in 2 contracts
Sources: Senior Secured Term Loan Agreement (Solaris Energy Infrastructure, Inc.), Senior Secured Term Loan Agreement (Solaris Energy Infrastructure, Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document (and any Hedge Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 1.12), upon the occurrence of if a Benchmark Transition Event or an Early Opt-and its related Benchmark Replacement Date have occurred prior to the Reference Time in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace respect of any setting of the then-current Benchmark with Benchmark, then (i) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement. Any ” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (ii) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will become effective replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted date notice of such proposed Benchmark Replacement is provided to the Lenders without any amendment to all affected Lenders and the Borrower to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment Benchmark Replacement from Lenders comprising the Required LendersLenders of each affected Class.
(iib) In connection with Notwithstanding anything to the administration of Term SOFR contrary herein or the implementation and administration of a Benchmark Replacementin any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement and Replacement, (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)1.12, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d).1.12 and/or any component definition used herein
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove any tenor modify the definition of “Interest Period” for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing ofSOFR Borrowing, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request for a SOFR Borrowing into a request for a Borrowing of or conversion to an ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest PeriodBorrowing. During a any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any SOFR Loan is outstanding on the ABRdate of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to Adjusted Term SOFR applicable to such SOFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 1.12, any SOFR Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute an ABR Loan on such day.
(f) The interest rate on a Loan denominated in US Dollar may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, this Section 1.12 provides a mechanism for determining an alternative rate of interest. Without limiting the express terms hereof, he Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) by any such information source or service. It is understood and agreed that this Section 1.12(f) shall not impair or otherwise limit the express provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Dayforce, Inc.), Credit Agreement (Dayforce, Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event Event, then upon the determination of the Benchmark Replacement in accordance with the definition thereof, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment will become effective at after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders ▇▇▇▇▇▇▇ and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent Agent, with the written consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed), will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.03(d). Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)3.03, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)3.03.
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including any Term SOFR)Benchmark) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove any tenor of such Benchmark that is unavailable unavailable, non-representative, non-compliant or non-representative for Benchmark (including Benchmark Replacement) settings aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any pending request for a Term Benchmark Borrowing of, conversion to or continuation of Term SOFR Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest PeriodBase Rate Loans. During a any Benchmark Unavailability Period or at any time that a any tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRBase Rate.
Appears in 2 contracts
Sources: Credit Agreement (WaterBridge Infrastructure LLC), Credit Agreement (WaterBridge Infrastructure LLC)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.17.2(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower and the Lenders of (iA) any occurrence of a Benchmark Transition Event, (B) the implementation of any Benchmark Replacement and Replacement, (iiC) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.17.2(d) below and (E) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)2.17.2, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)2.17.2.
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate (including the Term SOFRSOFR Reference Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove modify the definition of “Interest Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation borrowing of Term SOFR Loans to be made, converted or continued made during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Appears in 2 contracts
Sources: Credit Agreement (Solaris Energy Infrastructure, Inc.), Senior Secured Term Loan Agreement (Solaris Energy Infrastructure, Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Related Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower Master Issuer may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders Investors and the Borrower Master Issuer so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders Investors comprising the Required LendersInvestor Groups (provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met). No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.10(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Related Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Related Document.
(iiic) The Administrative Agent will promptly notify the Borrower Master Issuer and the Lenders Investors of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Master Issuer of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.10(d). Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Investor (or subject group of Investors) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)3.10, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Related Document, except, in each case, as expressly required pursuant to this Section 2.10(d)3.10.
(ivd) At Notwithstanding anything to the contrary herein or in any other Related Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFRSOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Eurodollar Interest Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove modify the definition of “Eurodollar Interest Accrual Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the BorrowerMaster Issuer’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower Master Issuer may revoke any pending request for a Borrowing borrowing of, conversion to or continuation of Term SOFR Loans any Eurodollar Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower Master Issuer will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest PeriodBase Rate Advances. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRBase Rate.
Appears in 1 contract
Sources: Class a 1 Note Purchase Agreement (Jack in the Box Inc)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.03(b)(i) will occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes Changes, in consultation with the Borrower, from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (iA) the implementation of any Benchmark Replacement and (iiB) the effectiveness of any Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent in consultation with, or subject to consent rights of, the Borrower as expressly set forth in this Section 2.10(d), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.10(d).
(iv) At any time (including Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR), then the . The Administrative Agent may remove will promptly notify the Borrower of the removal or reinstatement of any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion pursuant to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.Section 3.03(b)
Appears in 1 contract
Sources: Five Year Credit Agreement (Principal Financial Group Inc)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Prepayment Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent Buyer and the Borrower Seller may amend this Agreement Addendum to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent Buyer has posted provided notice of such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required LendersSeller.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent Buyer will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Prepayment Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAddendum or any other Prepayment Document.
(iiic) The Administrative Agent will Buyer shall promptly notify the Borrower and the Lenders Seller of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Buyer will notify the Seller of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to this Clause 13.2 and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation with, or subject Buyer pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)Clause 13.2, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement Addendum or any other Credit Prepayment Document, except, in each case, as expressly required pursuant to this Section 2.10(d)Clause 13.2.
(ivd) At Notwithstanding anything to the contrary herein or in any other Prepayment Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Buyer in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Buyer may modify the definition of 'Surcharge Period' (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non- representative tenor and (ii) if a tenor that was removed pursuant to Clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including Term SOFRa Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent Buyer may remove modify the definition of 'Surcharge Period' (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders L▇▇▇▇▇▇ and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders.
(ii) In connection with the administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent in consultation with, or subject to consent rights of, the Borrower as expressly set forth in this Section 2.10(d), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.10(d).
(iv) At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders.
(ii) In connection with the administration of the Adjusted Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (in consultation with the consent of the Borrower (not to be unreasonably withheld or delayed)Borrower) and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Credit Document.
(iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and or the Early Opt-in Election, as applicable, (ii) the effectiveness of any Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent in consultation with, or subject to consent rights of, the Borrower as expressly set forth in this Section 2.10(d), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.10(d).
(iv) At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Appears in 1 contract
Benchmark Replacement Setting. (i1) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may may, without further action or consent of any other party to this Agreement or any other Loan Document, amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted notice of such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment Benchmark Replacement from Lenders comprising the Required Lenders, or to the extent only affecting certain Facilities, Required Facility Lenders of the affected Facility or Facilities (in the case of multiple Facilities affected, voting as one Class), without further action or consent of any other party to this Agreement or any other Loan Document. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 1.12(1) will occur prior to the applicable Benchmark Transition Start Date.
(ii2) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes (subject to the consent rights of the Borrower set forth in such definition) from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iii3) The Administrative Agent will promptly notify the Borrower and the Lenders of (ia) the implementation of any Benchmark Replacement and Replacement, (iib) the effectiveness of any Benchmark Replacement Conforming Changes, (c) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 1.12(4) and (d) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation with, or subject to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)1.12 and the defined terms used herein, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)1.12.
(iv4) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (ia) if the then-current Benchmark is a term rate (including the Term SOFRSOFR Reference Rate) and either (i) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion and in consultation with the Borrower or (ii) the regulatory supervisor for the administrator of such ▇▇▇▇▇▇▇▇▇ has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may, with the consent of the Borrower (such consent not to be unreasonably withheld), modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor, (b) if a tenor that was removed pursuant to clause (a) above either (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove may, with the consent of the Borrower (such consent not to be unreasonably withheld), modify the definition of “Interest Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor and (c) if a new tenor for such Benchmark is displayed on a screen or other information service selected by the Administrative Agent in its reasonable discretion and in consultation with the Borrower, then the Administrative Agent may, with the consent of the Borrower (including such consent not to be unreasonably withheld), modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark Replacement) settingssettings at or after such time to add such new tenor.
(v5) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (ia) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Base Rate Loans and (iib) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Base Rate Loans at the end of the applicable Interest Period. During a any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRBase Rate.
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Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Transaction Document, upon the occurrence of if a Benchmark Transition Event or an Early Opt-and its related Benchmark Replacement Date have occurred prior to the reference time (if any) on the related Benchmark Determination Date in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace respect of any setting of the then-current Benchmark, then the Benchmark with a Replacement (to the extent agreed to by the Agent and the Seller) will replace such Benchmark Replacement. Any such amendment will become for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted date notice of such proposed Benchmark Replacement is provided pursuant to clause (c) below (without any amendment to all affected Lenders and the Borrower to, or further action or consent of any other party to, this Agreement or any other Transaction Document), so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment Benchmark Replacement from Lenders comprising the Required LendersPurchasers.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Transaction Document.
(iiic) The Administrative Agent will promptly notify the Borrower Seller, the Servicer and the Lenders each Company of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Agent will notify the Seller of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.6(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Purchaser (or subject group of Purchasers) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)3.6, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or making any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Transaction Document, except, in each case, as expressly required pursuant to this Section 2.10(d)3.6.
(ivd) At Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate or is based on a term rate (including the Term SOFR)SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such ▇▇▇▇▇▇▇▇▇ has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings tenor and (ii) if a tenor that was removed pursuant to the Administrative foregoing clause (i) either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Agent may (or at the request of the Seller, shall) modify the definition of “Accrual Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.tenor. FOURTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
(ve) Upon the BorrowerSeller’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower Seller may revoke any request for a Borrowing the purchase of, conversion to or continuation of Term SOFR Loans a Purchaser Interest for which the Discount Rate would have been calculated by reference to be made, converted or continued the then-current Benchmark during any Benchmark Unavailability Period andfor such Benchmark, and failing thatsuch revocation, the Borrower Seller will be deemed to have converted any such request into a request for a Borrowing that the Discount Rate applicable to the purchase of such Purchaser Interest or the conversion of such Purchaser Interest be calculated by reference to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest PeriodAlternative Base Rate. During a any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Alternative Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRAlternative Base Rate.
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Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent Agents and the Borrower Representative may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Term Loan Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower Representative so long as the Term Loan Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders, or with respect to the Priority Revolving Credit Facility, the Required Priority Revolving Credit Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 1.09(a)(i) will occur prior to the applicable Benchmark Transition Start Date.
(ii) No Swap Contract shall be deemed to be a “Loan Document” for purposes of this Section 1.09.
(b) In connection with the administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent Agents (in consultation with each other) will have the right to make Conforming Changes from time to time (in consultation with the consent of the Borrower (not to be unreasonably withheld or delayed)Representative) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The applicable Administrative Agent will promptly notify the Borrower Representative and the Appropriate Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent in consultation with, or subject to consent rights of, the Borrower as expressly set forth in this Section 2.10(d), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.10(d).
(iv) At any time (including Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR), then the . The applicable Administrative Agent may remove will promptly notify the Borrower Representative of the removal or reinstatement of any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.pursuant to
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Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Transaction Document, upon the occurrence of a Benchmark Transition Event Event, then (A) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document without any amendment to, or an Early Opt-in Electionfurther action or consent of any other party to, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with or any other Transaction Document and (B) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement. Any ” for such amendment Benchmark Replacement Date, such Benchmark Replacement will become effective replace such Benchmark for all purposes hereunder and under any Transaction Document at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Series 2026-1 Class A-1 Administrative Agent has posted such proposed amendment to all affected Lenders the Investors and the Borrower Co-Issuers so long as the Series 2026-1 Class A-1 Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required LendersInvestors.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Series 2026-1 Class A-1 Administrative Agent will have the right to make Conforming Changes from time to time (in consultation with the consent of the Borrower (not to be unreasonably withheld or delayed)Co-Issuers) and, notwithstanding anything to the contrary herein or in any other Credit Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Transaction Document. The Series 2026-1 Class A-1 Administrative Agent will reasonably promptly notify the Co-Issuers and the Investors of the effectiveness of any such Conforming Changes.
(iiic) The Series 2026-1 Class A-1 Administrative Agent will shall promptly notify the Borrower Co-Issuers and the Lenders Investors of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Series 2026-1 Class A-1 Administrative Agent shall promptly notify the Co-Issuers of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.04(d). Any determination, decision or election that may be made by the Series 2026-1 Class A- 1 Administrative Agent in consultation withor, if applicable, any Investor (or subject Investor Group) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)3.04, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-non- occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Transaction Document, except, in each case, as expressly required pursuant to this Section 2.10(d)3.04.
(ivd) At Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR), then the Administrative Agent may remove ) and either (A) any tenor of for such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, displayed on a screen or other information service that publishes such rate from time to time as selected by the component Series 2026-1 Class A-1 Administrative Agent in its reasonable discretion or (B) the administrator of the ABR based upon the then-current such unadjusted Benchmark or such tenor the regulatory supervisor for such Benchmark, as applicable, will not be used in any determination of the ABR.the
Appears in 1 contract
Sources: Note Purchase Agreement (DigitalBridge Group, Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Transaction Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower Co-Issuers may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders Investors and the Borrower Co-Issuers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders Investors comprising the Required LendersInvestor Groups (provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met). No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.11(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Transaction Document.
(iiic) The Administrative Agent will promptly notify the Borrower Co-Issuers and the Lenders Investors of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Co-Issuers of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.11(d). Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Investor (or subject group of Investors) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)3.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Transaction Document, except, in each case, as expressly required pursuant to this Section 2.10(d)3.11.
(ivd) At Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR)SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove any tenor of such Benchmark that is unavailable unavailable, non-representative, non-compliant or non-representative for Benchmark (including Benchmark Replacement) settings aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Accrual Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 1.16(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 1.16(d). Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)1.16, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)1.16.
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark 748271253 Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFRSOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove modify the definition of “Interest Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest PeriodBase Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
(f) In connection with the ABRuse, administration of, or conventions associated with, Term SOFR and the Term SOFR Reference Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will reasonably promptly notify the Borrower and the Lenders of the effectiveness of any such Conforming Changes.
(g) Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the continuation of, administration of, submission of, calculation of, or any other matter related to “Adjusted Term SOFR”, “Base Rate”, “SOFR”, “Term SOFR” and the “Term SOFR Reference Rate” any component definition thereof or rates referenced in the definition thereof or any alternative or successor rate thereto, or replacement rate thereof (including, without 748271253 limitation, (i) any then-current Benchmark or any Benchmark Replacement, (ii) any alternative, successor or replacement rate implemented pursuant to Section 1.16, whether upon the occurrence of a Benchmark Transition Event and (iii) the effect, implementation or composition of any Conforming Changes, including without limitation, (A) whether the composition or characteristics of any such alternative, successor or replacement reference rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as Base Rate, the existing Benchmark or any subsequent Benchmark Replacement prior to its discontinuance or unavailability (including Adjusted Term SOFR, Term SOFR, the Term SOFR Reference Rate or any other Benchmark), and (B) the impact or effect of such alternative, successor or replacement reference rate or Conforming Changes on any other financial products or agreements in effect or offered by or to any obligor or Lender or any of their respective Affiliates. Administrative Agent may select information sources or services in its reasonable discretion to ascertain any Base Rate or any Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service. Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of Base Rate or any Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to Borrower.
(h) The Borrower and each other Loan Party (including those that that become party hereto after the date hereof), in its respective capacity as a Borrower, debtor, obligor, grantor, pledgor, guarantor, assignor, or other similar capacity in which such party acts as direct or indirect, or primary or secondary, obligor, accommodation party or guarantor or grants liens or security interests in or to its properties hereunder or under any other Loan Document, hereby acknowledges and agrees to be bound by the provisions of this Section titled “Benchmark Replacement Setting” (including, without limitation, the implementation from time to time of any Benchmark Replacement and any Conforming Changes in accordance herewith) and, in furtherance of the forgoing (and without, in any way express or implied, invalidating, impairing or otherwise negatively affecting any obligations heretofore provided) hereby acknowledges and agrees that in connection with and after giving effect to any Benchmark Cessation Changes: (i) its Obligations shall not in any way be novated, discharged or otherwise impaired, and shall continue, be ratified and be affirmed and shall remain in full force in effect, (ii) its grant of a guarantee, pledge, assignment or any other accommodation, lien or security interests in or to its properties relating to this Agreement or any other Loan Document shall continue, be ratified and be affirmed, and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired and (iii) the Loan Documents and its obligations thereunder (contingent or otherwise) shall continue, be ratified and be affirmed and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired. In addition, each Loan Party hereby fully waives any requirements to notify 748271253 such Loan Party of any Benchmark Cessation Changes (except as expressly provided in this Section titled “Benchmark Replacement Setting”). In furtherance of the foregoing, each Loan Party hereby (i) appoints Borrower (and the Borrower hereby accepts such appointment) as its agent, attorney-in-fact and representative for purposes of the delivery of any and all documents, instruments, agreements and other materials required to be delivered by any such party and for all other administrative purposes incidental to any of the foregoing provisions of this clause (h) and this Section titled “Benchmark Replacement Setting” and (ii) hereby authorizes the Borrower to take such actions, execute, acknowledge, and deliver, or cause to be executed, acknowledged and delivered, such further agreements, documents or instruments that are reasonably necessary or desirable to carry out the intent and purpose of this Section (h) and this Section titled “Benchmark Replacement Setting” on its behalf. From time to time, the Borrower (both in its individual capacity and in its capacity as agent, agent, attorney-in-fact and representative of each other Loan Party pursuant to the immediately preceding sentence) and the Loan Parties shall execute and deliver, or cause to be executed and delivered, such instruments, agreements, certificates or documents, and take all such actions, as the Administrative Agent may reasonably request for the purposes implementing or effectuating the provisions of this Section titled “Benchmark Replacement Setting”, or of renewing, continuing, reaffirming or ratifying the rights of the Administrative Agent and the other Lenders with respect to the Obligations or the Collateral.
Appears in 1 contract
Sources: Credit Agreement (StoneX Group Inc.)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Transaction Document, upon the occurrence of if a Benchmark Transition Event or an Early Opt-and its related Benchmark Replacement Date have occurred prior to the Reference Time in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace respect of any setting of the then-current Benchmark, then the Benchmark with a Replacement will replace such Benchmark Replacement. Any such amendment will become effective for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted date notice of such proposed Benchmark Replacement is provided to the Purchasers without any amendment to all affected Lenders and the Borrower to, or further action or consent of any other party to, this Agreement or any other Transaction Document so long as the Administrative Agent Administrator has not received, by such time, written notice of objection to such amendment Benchmark Replacement from Lenders Purchasers comprising the Required LendersMajority Purchaser Agents.
(ii) In connection with the administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent Administrator will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Transaction Document.
(iii) The Administrative Agent Administrator will promptly notify the Borrower Seller and the Lenders Purchaser Agents of (iA) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (B) the implementation of any Benchmark Replacement and Replacement, (iiC) the effectiveness of any Conforming Changes, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to paragraph (iv) below and (E) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withAdministrator or, if applicable, any Purchaser (or subject group of Purchasers) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)1.24, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, Transaction Document except, in each case, as expressly required pursuant to this Section 2.10(d)1.24.
(iv) At Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate and either (including Term SOFR)I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrator in its reasonable discretion or (II) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent Administrator may remove any tenor of such Benchmark that is unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (I) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) settings and or (iiII) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent Administrator may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(v) Upon the BorrowerSeller’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower Seller may revoke any request for a Borrowing ofPurchase, or a conversion to or continuation of Term Purchases, bearing interest at the SOFR Loans Rate to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower Seller will be deemed to have converted any such request into a request for a Borrowing Purchase, or a conversion of or conversion to ABR Loans and (ii) during a Purchase, bearing interest at the continuance Base Rate, and, for the avoidance of any Benchmark Unavailability Perioddoubt, any all outstanding affected Term Purchases bearing interest at the SOFR Loans will Rate shall automatically be deemed to have been converted to ABR Loans Purchases bearing interest at the end of the applicable Interest PeriodBase Rate. During a any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Alternate Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRAlternate Rate.
(vi) As used in this Section 1.24:
Appears in 1 contract
Sources: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Document:
(i) On March 5, upon 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of USD LIBOR’s administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12-month USD LIBOR tenor settings. On the earlier of (i) the date that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark is USD LIBOR, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(ii) Upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may amend this Agreement to Benchmark Replacement will replace the then-current Benchmark with a for all purposes hereunder and under any Loan Document in respect of any Benchmark Replacement. Any such amendment will become effective setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted date notice of such proposed Benchmark Replacement is provided to the Lenders without any amendment to all affected Lenders and the Borrower to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment Benchmark Replacement from Lenders comprising the Required LendersLenders of each Class. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans. During the period referenced in the foregoing sentence, the component of ABR based upon the Benchmark will not be used in any determination of ABR.
(iiiii) In connection with the administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iiiiv) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d2.18(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selectionaction, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Documenthereto, except, in each case, as expressly required pursuant to this Section 2.10(d2.18(b).
(ivv) At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFRSOFR or USD LIBOR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(vvi) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be As used in any determination of the ABR.this Section 2.18(b):
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicablewith respect to any Benchmark, the Administrative Agent and the Borrower Company may amend this Agreement to replace the then-current such Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower Company so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.22(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right right, with the consent of the Company, to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower Company and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Company of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.22(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)2.22, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)2.22.
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFRSOFR Reference Rate, EURIBOR or CDOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove modify the definition of “Interest Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the BorrowerCompany’s receipt of notice of the commencement of a Benchmark Unavailability PeriodPeriod with respect to a given Benchmark, (i) the applicable Borrower may revoke any pending request for a Term SOFR Borrowing or a Eurocurrency Borrowing of, conversion to or continuation of Term SOFR Loans or Eurocurrency Loans, or a S▇▇▇▇ ▇▇▇▇ Borrowing of, conversion to or continuation of S▇▇▇▇ Rate Loans, in each case, to be made, converted or continued during any Benchmark Unavailability Period denominated in the applicable currency and, failing that, (A) in the case of any request for any affected Term SOFR Borrowing, if applicable, the applicable Borrower will be deemed to have converted any such request into a request for a an ABR Borrowing of or conversion to ABR Loans in the amount specified therein and (iiB) during in the continuance case of any Benchmark Unavailability Periodrequest for any affected S▇▇▇▇ Rate Borrowing or Eurocurrency Borrowing, if applicable, then such request shall be ineffective and (ii)(A) any outstanding affected Term SOFR Loans Loans, if applicable, will be deemed to have been converted to into ABR Loans at the end of the applicable Interest Period and (B) any outstanding affected S▇▇▇▇ Rate Loans or Eurocurrency Rate Loans, at the applicable Borrower’s election, shall either (I) be converted into ABR Loans denominated in US Dollars (in an amount equal to the US Dollar Equivalent of such currency) immediately or, in the case of Eurocurrency Loans, at the end of the applicable Interest Period or (II) be prepaid in full immediately or, in the case of Eurocurrency Loans, at the end of the applicable Interest Period; provided that, with respect to any S▇▇▇▇ Rate Loan, if no election is made by the applicable Borrower by the date that is three Business Days after receipt by the Company of such notice, the applicable Borrower shall be deemed to have elected clause (I) above; provided, further, that, with respect to any Eurocurrency Loan, if no election is made by the applicable Borrower by the earlier of (x) the date that is three Business Days after receipt by the Company of such notice and (y) the last day of the current Interest Period for the applicable Eurocurrency Loan, the applicable Borrower shall be deemed to have elected clause (I) above. Upon any such prepayment or conversion, the applicable Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.14. During a Benchmark Unavailability Period with respect to any Benchmark or at any time that a tenor for the any then-current Benchmark is not an Available Tenor, the component of the ABR Alternate Base Rate based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRAlternate Base Rate.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in ElectionEvent, as applicable, the Administrative Agent Lender and the Borrower Borrowers may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.17(a) will become effective at 5:00 p.m. (New York City time) on occur prior to the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lendersapplicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent Lender will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent Lender will promptly notify the Borrower and the Lenders Borrowers of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. ▇▇▇▇▇▇ will promptly notify the Borrowers of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.17(d). Any determination, decision or election that may be made by the Administrative Agent in consultation with, or subject Lender pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)2.17, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)2.17.
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR), then the Administrative Agent may remove SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Lender in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is unavailable not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then Lender may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-representative for Benchmark (including Benchmark Replacement) settings aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the Administrative Agent International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then Lender may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s Borrowers’ receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower Borrowers may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower Borrowers will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest PeriodBase Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRBase Rate.
Appears in 1 contract
Sources: Credit Agreement (Alico, Inc.)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Document:
(i) On March 5, upon 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of USD LIBOR’s administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12-month USD LIBOR tenor settings. On the earlier of (i) the date that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark is USD LIBOR, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(i) (ii) Upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may amend this Agreement to Benchmark Replacement will replace the then-current Benchmark with a for all purposes hereunder and under any Loan Document in respect of any Benchmark Replacement. Any such amendment will become effective setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted date notice of such proposed Benchmark Replacement is provided to the Lenders without any amendment to all affected Lenders and the Borrower to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment Benchmark Replacement from Lenders comprising the Required LendersLenders of each Class. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Base Rate Loans. During the period referenced in the foregoing sentence, the component of ABRthe Base Rate based upon the Benchmark will not be used in any determination of ABRthe Base Rate.
(ii) (iii) In connection with the administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iiiiv) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d2.18(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selectionaction, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Documenthereto, except, in each case, as expressly required pursuant to this Section 2.10(d2.18(b).
(iv) At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicablewith respect to any Benchmark, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current such Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City London time) on the fifth (5th) Business Day after the Administrative 960766985.12 71 Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.04(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.04(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)3.04, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)3.04.
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the any then-current Benchmark is a term rate (including the Term SOFRSOFR Reference Rate or EURIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove modify the definition of “Interest Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability PeriodPeriod with respect to a given Benchmark, (i) the Borrower may revoke any pending request for a an RFR Borrowing of, conversion to of or continuation of Term SOFR Loans RFR Loans, or a Eurocurrency Rate Borrowing of or continuation of Eurocurrency Rate Loans, in each case, to be made, converted made or continued during any Benchmark Unavailability Period denominated in the 960766985.12 72 applicable Agreed Currency and, failing that, (A) in the case of any request for any affected Term SOFR Borrowing, if applicable, the Borrower will be deemed to have converted any such request into a request for a the Borrowing of an ABR Loan or conversion to ABR Loans in the amount specified therein, and (iiB) during in the continuance case of any Benchmark Unavailability Periodrequest for any affected RFR Borrowing or Eurocurrency Rate Borrowing, in each case, in an Alternative Currency, if applicable, then such request shall be ineffective provided that if the circumstances giving rise to such notice do not affect the availability of the Central Bank Rate for any Alternative Currency, such request may, at the election of the Borrower, be made for a CBR Loan in the applicable Alternative Currency; and (ii)(A) any outstanding affected Term SOFR Loans Loans, if applicable, will be deemed to have been converted to into ABR Loans at the end of the applicable Interest Period and (B) any outstanding affected Eurocurrency Rate Loans and Compounded Rate Loans, at the Borrower’s election, shall either (I) be converted into CBR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability , (II) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Alternative Currency) at the end of the applicable Interest Period or (III) be prepaid in full immediately or, in the case of Eurocurrency Rate Loans, at any time the end of the applicable Interest Period; provided that a tenor for if no election is made by the then-Borrower by the earlier of (x) the date that is three Business Days after receipt by the Borrower of such notice and (y) the last day of the current Benchmark is not an Available TenorInterest Period, the component of Borrower shall be deemed to have elected clause (I) above. Upon any such prepayment or conversion, the ABR based upon Borrower shall also pay accrued interest on the then-current Benchmark amount so prepaid or such tenor for such Benchmarkconverted, as applicable, will not be used in together with any determination of the ABRadditional amounts required pursuant to Section 3.06.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein or in any other Credit Documentdocument related to this Agreement, upon the occurrence of a Benchmark Transition Event or an Early Opt-in ElectionEvent, as applicable, the Administrative Agent Purchaser and the Borrower Seller may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on upon the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders execution and the Borrower so long as the Administrative Agent has not received, by such time, written notice delivery of objection to such amendment from Lenders comprising by ▇▇▇▇▇▇▇▇▇ and Seller. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2(j) will occur prior to the Required Lendersapplicable Benchmark Transition Start Date.
(ii) In connection with the administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent Purchaser will have the right right, in consultation with the Seller, to make Benchmark Replacement Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, and notwithstanding anything to the contrary herein or in any other Credit Documentdocument related to this Agreement, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this AgreementSeller.
(iii) The Administrative Agent Purchaser will promptly notify the Borrower and the Lenders Seller of (iA) the implementation of any Benchmark Replacement and (iiB) the effectiveness of any Benchmark Replacement Conforming Changes. Purchaser will promptly notify Seller of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below. Any determination, decision or election that may be made by the Administrative Agent in consultation with, or subject Purchaser pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d2(j), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit DocumentSeller, except, in each case, as expressly required pursuant to this Section 2.10(d2(j).
(iv) At Notwithstanding anything to the contrary herein or in any other document related to this Agreement, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate (including the Term SOFR), then the Administrative Agent may remove SOFR Reference Rate) and either (x) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Purchaser in its reasonable discretion or (y) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, the Purchaser may modify the definition of “Term SOFR Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (x) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (y) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then Purchaser may modify the definition of “Term SOFR Period” (or any similar or analogous definition) for all Benchmark settings and (ii) the Administrative Agent may at or after such time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(v) Upon the BorrowerSeller’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower Seller may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRpending Purchase Request.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Lifetime Brands, Inc)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Transaction Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower Co-Issuers may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders Investors and the Borrower Co-Issuers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required LendersInvestor Groups holding more than (i) if no single Investor Group holds more than 50% of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds more than 50% of the Commitments, two thirds of the Commitments (provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met). No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.04(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Transaction Document.
(iiic) The Administrative Agent will promptly notify the Borrower Co-Issuers and the Lenders Investors of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Co-Issuers of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.04(d). Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Investor (or subject group of Investors) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)3.04, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Transaction Document, except, in each case, as expressly required pursuant to this Section 2.10(d)3.04.
(ivd) At Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFRSOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “SOFR Interest Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove modify the definition of “SOFR Interest Accrual Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s Co-Issuers’ receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower Co-Issuers may revoke any pending request for a Borrowing borrowing of, conversion to or continuation of Term any SOFR Loans Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower Co-Issuers will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest PeriodBase Rate Advances. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
(f) In connection with the ABRuse, administration of, or conventions associated with, Term SOFR and the Term SOFR Reference Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Transaction Document. The Administrative Agent will reasonably promptly notify the Co-Issuers and the Investors of the effectiveness of any such Conforming Changes.
(g) For purposes of the Series 2024-1 Class A-1 Notes:
Appears in 1 contract
Sources: Note Purchase Agreement (Driven Brands Holdings Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicablewith respect to a Benchmark, the Administrative Agent and the Borrower Borrowers may amend this Agreement to replace the then-current such Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement”, without any further action or consent of any other party to this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement”, at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower Borrowers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.22(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower Borrowers and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrowers of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.22(d). Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)2.22, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)2.22.
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), ) (i) if the then-current Benchmark is a term rate (including the Term SOFR)SOFR Reference Rate or the Eurocurrency Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove any tenor of such Benchmark that is unavailable unavailable, non-representative, non-compliant or non-representative for Benchmark (including Benchmark Replacement) settings aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s Borrowers’ receipt of notice of the commencement of a Benchmark Unavailability PeriodPeriod with respect to a given Benchmark, (i) the Borrower Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued in such Benchmark during any Benchmark Unavailability Period and, failing that, the Borrower Borrowers will be deemed to have (x) converted any such request for Borrowings denominated in Dollars into a request for a Borrowing of or conversion to ABR Base Rate Loans and (y) converted any such request for a Borrowings denominated in any other Agreed Currency into a request for a Borrowing of or conversion to Base Rate Loans denominated in Dollars (in an amount equal to the Equivalent Amount in Dollars of such other Agreed Currency) and (ii) during the continuance of any Benchmark Unavailability Period, (A) any outstanding affected Term SOFR Loans denominated in Dollars will be deemed to have been converted to ABR into Base Rate Loans at the end of the applicable Interest Period therefor and (B) any outstanding affected Eurocurrency Loans and any SON▇▇ ▇▇ans, at the Borrowers’ election, shall either (1) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Equivalent Amount in Dollars of such other Agreed Currency) at the end of the applicable Interest Period therefor with respect to Eurocurrency Loans and immediately with respect to SON▇▇ ▇▇ans or (2) be prepaid in full at the end of the applicable Interest Period therefor with respect to Eurocurrency Loans and immediately with respect to SON▇▇ ▇▇ans; provided that if no election is made under this clause (B) by the Borrowers (i) in respect of SON▇▇ ▇▇rrowings, by the date that is three Business Days after receipt by a Borrower of such notice and (ii) in respect of Eurocurrency Borrowings, by the earlier of (x) the date that is three Business Days after receipt by a Borrower of such notice or (y) the last day of the current Interest Period, the Borrowers shall be deemed to have elected clause (1) above. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Base Rate based upon the then-current Benchmark Term SOFR or such tenor for such Benchmarkof Term SOFR, as applicable, will not be used in any determination of Base Rate.
(f) In connection with the ABRuse, administration of, or conventions associated with, Term SOFR or SON▇▇, ▇he Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will reasonably promptly notify the Borrowers and the Lenders of the effectiveness of any such Conforming Changes.
Appears in 1 contract
Sources: Credit Agreement (WestRock Co)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Transaction Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower Co- Issuers may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders Investors and the Borrower Co-Issuers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required LendersInvestor Groups holding more than (i) if no single Investor Group holds more than 50% of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds more than 50% of the Commitments, two thirds of the Commitments (provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met). No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.04(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Transaction Document.
(iiic) The Administrative Agent will promptly notify the Borrower Co-Issuers and the Lenders Investors of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Co-Issuers of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.04(d). Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Investor (or subject group of Investors) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)3.04, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Transaction Document, except, in each case, as expressly required pursuant to this Section 2.10(d)3.04.
(ivd) At Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFRSOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “SOFR Interest Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove modify the definition of “SOFR Interest Accrual Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Appears in 1 contract
Sources: Note Purchase Agreement (Driven Brands Holdings Inc.)
Benchmark Replacement Setting. 1760912957
(ia) Notwithstanding anything to the contrary herein or in any other Credit Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 1.17(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the administration of Term SOFR use, administration, adoption or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary herein or in any other Credit Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(iiic) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 1.17(d). Any determination, decision or election that may be made by the Administrative Agent in consultation withor, if applicable, any Lender (or subject group of Lenders) pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)1.17, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Loan Document, except, in each case, as expressly required pursuant to this Section 2.10(d)1.17.
(ivd) At Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFRSOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove modify the definition of “Interest Period” (or any tenor of similar or analogous definition) for all Benchmark settings at or after such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any pending request for a SOFR 1760912957 Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest PeriodBase Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
(f) In connection with the ABRuse, administration of, or conventions associated with, Term SOFR and the Term SOFR Reference Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will reasonably promptly notify the Borrower and the Lenders of the effectiveness of any such Conforming Changes.
(g) Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the continuation of, administration of, submission of, calculation of, or any other matter related to “Base Rate”, “SOFR”, “Term SOFR” and the “Term SOFR Reference Rate” any component definition thereof or rates referenced in the definition thereof or any alternative or successor rate thereto, or replacement rate thereof, including, without limitation, (i) any then-current Benchmark or any Benchmark Replacement, (ii) any alternative, successor or replacement rate implemented pursuant to Section 1.16, whether upon the occurrence of a Benchmark Transition Event and (iii) the effect, implementation or composition of any Conforming Changes, including without limitation, (A) whether the composition or characteristics of any such alternative, successor or replacement reference rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as Base Rate, the existing Benchmark or any subsequent Benchmark Replacement prior to its discontinuance or unavailability (including Term SOFR, the Term SOFR Reference Rate or any other Benchmark), and (B) the impact or effect of such alternative, successor or replacement reference rate or Conforming Changes on any other financial products or agreements in effect or offered by or to any obligor or Lender or any of their respective Affiliates. Administrative Agent may select information sources or services in its reasonable discretion to ascertain any Base Rate or any Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service. Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of Base Rate or any Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to Borrower.
(h) The Borrower and each other Loan Party (including those that that become party hereto after the date hereof), in its respective capacity as a Borrower, debtor, obligor, grantor, pledgor, guarantor, assignor, or other similar capacity in which such party acts as direct or indirect, or primary or secondary, obligor, accommodation party or guarantor or grants liens or security interests in or to its properties hereunder or under any other Loan Document, hereby acknowledges and agrees to be bound by the provisions of this Section titled “Benchmark Replacement Setting” (including, without limitation, the implementation from time to time of any Benchmark Replacement and any Conforming Changes in accordance herewith) and, in furtherance of the forgoing (and without, in any way express or implied, invalidating, impairing 1760912957 or otherwise negatively affecting any obligations heretofore provided) hereby acknowledges and agrees that in connection with and after giving effect to any Benchmark Cessation Changes: (i) its Obligations shall not in any way be novated, discharged or otherwise impaired, and shall continue, be ratified and be affirmed and shall remain in full force in effect, (ii) its grant of a guarantee, pledge, assignment or any other accommodation, lien or security interests in or to its properties relating to this Agreement or any other Loan Document shall continue, be ratified and be affirmed, and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired and (iii) the Loan Documents and its obligations thereunder (contingent or otherwise) shall continue, be ratified and be affirmed and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired. In addition, each Loan Party hereby fully waives any requirements to notify such Loan Party of any Benchmark Cessation Changes (except as expressly provided in this Section titled “Benchmark Replacement Setting”). In furtherance of the foregoing, each Loan Party hereby (i) appoints ▇▇▇▇▇▇▇▇ (and the Borrower hereby accepts such appointment) as its agent, attorney-in-fact and representative for purposes of the delivery of any and all documents, instruments, agreements and other materials required to be delivered by any such party and for all other administrative purposes incidental to any of the foregoing provisions of this clause (h) and this Section titled “Benchmark Replacement Setting” and (ii) hereby authorizes the Borrower to take such actions, execute, acknowledge, and deliver, or cause to be executed, acknowledged and delivered, such further agreements, documents or instruments that are reasonably necessary or desirable to carry out the intent and purpose of this Section (h) and this Section titled “Benchmark Replacement Setting” on its behalf. From time to time, the Borrower (both in its individual capacity and in its capacity as agent, agent, attorney-in-fact and representative of each other Loan Party pursuant to the immediately preceding sentence) and the Loan Parties shall execute and deliver, or cause to be executed and delivered, such instruments, agreements, certificates or documents, and take all such actions, as the Administrative Agent may reasonably request for the purposes implementing or effectuating the provisions of this Section titled “Benchmark Replacement Setting”, or of renewing, continuing, reaffirming or ratifying the rights of the Administrative Agent and the other Lenders with respect to the Obligations or the Collateral.
Appears in 1 contract
Sources: Credit Agreement (StoneX Group Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary herein or in any other Credit Transaction Document, upon the occurrence of if a Benchmark Transition Event or an Early Opt-and its related Benchmark Replacement Date have occurred prior to the Reference Time in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace respect of any setting of the then-current Benchmark, then the Benchmark with a Replacement will replace such Benchmark Replacement. Any such amendment will become effective for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted date notice of such proposed Benchmark Replacement is provided to the Purchasers without any amendment to all affected Lenders and the Borrower to, or further action or consent of any other party to, this Agreement or any other Transaction Document so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment Benchmark Replacement from Lenders Group Agents comprising the Required LendersMajority Group Agents.
(iib) In connection with the administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time (in consultation with the consent of the Borrower (not to be unreasonably withheld or delayed)) Seller and, notwithstanding anything to the contrary herein or in any other Credit Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Transaction Document.
(iiic) The Administrative Agent will promptly notify the Borrower Seller and the Lenders Group Agents of (iA) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (B) the implementation of any Benchmark Replacement and Replacement, (iiC) the effectiveness of any Conforming Changes, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to paragraph (iv) below and (E) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent in consultation withor, or subject if applicable, any Group Agent pursuant to consent rights of, the Borrower as expressly set forth in this Section 2.10(d)5.06, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, Transaction Document except, in each case, as expressly required pursuant to this Section 2.10(d)5.06.
(ivd) At Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate and either (I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (I) is subsequently displayed on a screen or information service for a Benchmark (including Term SOFRa Benchmark Replacement) or (II) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settingstenor.
(ve) Upon the BorrowerSeller’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower Seller may revoke any request for a Borrowing ofPurchase, or a conversion to or continuation of Term Purchases, bearing interest at the SOFR Loans Rate to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower Seller will be deemed to have converted any such request into a request for a Borrowing Purchase, or a conversion of or conversion to ABR Loans and (ii) during a Purchase, bearing interest at the continuance Base Rate, and, for the avoidance of any Benchmark Unavailability Perioddoubt, any all outstanding affected Term Purchases bearing interest at the SOFR Loans will Rate shall automatically be deemed to have been converted to ABR Loans Purchases bearing interest at the end of the applicable Interest PeriodBase Rate. During a any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR Alternate Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABRAlternate Rate.
(f) As used in this Section 5.06:
Appears in 1 contract
Sources: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.)