Libor

Written by: Patrick Shaunessy

76 minute read

What is LIBOR and why is it ending?

The sun is setting on the London Interbank Offered Rate, or LIBOR, which for decades has been the world’s most pervasive interest rate benchmark. Officially adopted as a benchmark for short-term, interbank loans in the mid-1980s, LIBOR is a methodology for establishing the average rate at which major international banks are willing to lend money to each other in particular currencies for certain borrowing periods, or tenors. Currently, LIBOR is calculated and published for seven tenors, ranging from overnight (or spot next) to 12 months, across five currencies: U.S. Dollars (USD), British Pounds (GBP), Euros (EUR), Swiss Francs (CHF) and Japanese Yen (JPY). This means 35 individual rates are prepared for publication each applicable London business day. The Intercontinental Exchange Benchmark Administration (IBA) is the body responsible for calculating and publishing LIBOR, using input data supplied by five panels of designated contributor banks (one for each LIBOR currency).

Starting in 2008, major news publications began reporting that banks providing the rates used to compute the various LIBOR settings were manipulating LIBOR to benefit their respective trading businesses or to improve their creditworthiness. By some accounts, this practice had been going on since the early 1990s. Regulatory authorities began investigating soon after and by 2012 had begun issuing fines to participating banks. Exposure of this scandal damaged public confidence in LIBOR, and in July 2017, the UK Financial Conduct Authority (which is the regulator for LIBOR) announced that LIBOR would be effectively phased out by the end of 2021. Since then, market participants have been preparing to transition to alternative reference rates, or ARRs. At present, all EUR, GBP, CHF and JPY LIBOR settings as well 1-week and 2-month USD LIBOR settings are expected to cease publication after December 31, 2021. The remaining USD LIBOR settings are expected to cease publication after June 30, 2023.

Why does LIBOR matter?

Estimates vary, but as much as US$350 trillion worth of financial contracts worldwide use LIBOR as a reference rate or benchmark. In other words, there is not a corner of the financial world that LIBOR does not touch, which is why its cessation is such a monumental event. For many businesses, the prospect of having to review and amend or even renegotiate agreements and other documents that reference LIBOR is a massive undertaking. Large financial institutions, in particular, may have millions of documents that need to be checked. And the time for businesses to get all their proverbial ducks in a row is running out.

Given the magnitude of this change, as well as the uncertainties that remain in some cases with respect to the transition to ARRs, this is not something that businesses will want to leave to the last minute. Even though a clear deadline for phasing out the publication of LIBOR has been established, that doesn’t necessarily mean that LIBOR will still exist at that time. There is a risk that LIBOR could end earlier than expected. Should that happen, its early cessation could be quite disruptive for any business that has not yet fully addressed the transition. This is why it is so important for businesses that may be affected by LIBOR cessation to review all necessary documents and take all necessary steps to effect compliance sooner rather than later.

How do you review contracts for LIBOR cessation?

To prepare for LIBOR cessation and the subsequent transition to ARRs, businesses must ensure that any and all affected contracts have been reviewed and, if necessary, modified before the relevant deadline. This process includes (i) identifying all contracts that reference LIBOR, (ii) determining whether any affected contracts have adequate mechanisms for addressing LIBOR cessation, (iii) if not, assessing what actions (e.g., notices, approvals, amendments, etc.) must be taken to address it, and (iv) taking all such necessary actions in a timely manner. The following framework is meant to assist with tackling steps (i) - (iii) above in the context of credit agreements. This framework could, however, be adapted for other types of contracts that may be affected by LIBOR cessation, including bond indentures, derivative contracts and mortgages.

1. Impact Analysis

As the first step in the process, the impact analysis involves (a) identifying credit agreements that reference LIBOR, (b) confirming whether they mature after the planned LIBOR cessation deadline, and (c) determining which loans under the agreement are affected. Each of these aspects is discussed in more detail below. In addition, the examples provided under Examples of LIBOR-related clauses, 1) Impact Analysis illustrate the various contractual provisions that help with this stage of the review.

  1. Defined terms referencing “LIBOR”. Often, though not always, credit agreements will contain a definition of either LIBOR or a Eurocurrency rate (usually, the Eurodollar rate, which is a rate that is, for all intents and purposes, synonymous with USD LIBOR), in which case it will be clear that the agreement requires further analysis. The defined terms for “Base Rate” and “Applicable Margin” in these agreements may also contain references to LIBOR. In such cases, these terms generally provide additional insight into how LIBOR is used for the purposes of computing the rates and/or margins applicable to one or more loans established by the agreement, which helps inform the overall impact of LIBOR cessation.
  2. Maturity Date or Termination date. Even if a credit agreement refers to LIBOR, the question of LIBOR cessation’s impact likely becomes moot if the ultimate maturity or termination date is either (i) on or before December 31, 2021 for all published LIBOR settings other than certain tenors of USD LIBOR, or (ii) June 30, 2023 for those remaining tenors of USD LIBOR. Accordingly, the maturity or termination date is a critical data point for assessing an organization’s overall exposure to LIBOR cessation. Note, however, that further investigation may be necessary if the maturity/termination date definition is contingent on certain events or contemplates extensions - see, for instance, example 2 under d. Definition of “Maturity Date” or “Termination Date” below where “Commitment Termination Date” is defined as “the later of” (a) June 30, 2023 and (b) the extension termination date, if an extension option is exercised.
  3. Affected loans or facilities. Another important term in the impact analysis is the interest rate clause, which describes the interest rates applicable to the various loans established by the agreement. It may be that only certain loans use an interest rate that is benchmarked to LIBOR, and therefore the focus of further analysis and any required remediation actions will be narrowed to those affected loans.

2. Fallback Analysis

Once the affected agreements have been identified, the fallback analysis involves (a) identifying any specific LIBOR fallback mechanisms, (b) considering alternative fallback mechanisms in agreements without a specific LIBOR fallback mechanism, and (c) considering the cost implications of addressing LIBOR cessation. Each of these aspects is discussed in more detail below. In addition, the examples provided under Examples of LIBOR-related clauses, 2) Fallback Analysis illustrate the various contractual provisions that help with this stage of the review.

  1. Specific LIBOR fallback mechanisms. Some credit agreements will have provisions that specifically address LIBOR cessation. As the examples under a. LIBOR Fallback Mechanism below illustrate, these provisions typically detail (i) what circumstances trigger the fallback mechanism to replace LIBOR as the benchmark, (ii) the process for establishing a successor ARR, including adjusting applicable margins and making other necessary changes, and (iii) who needs to be consulted or involved to make the necessary modifications to the agreement to reflect the ARR. Note that these provisions may require that the agreement be amended, in which case reviewers should confirm the lender approval requirements needed to implement any such change. Generally speaking, these specific fallback mechanisms should be robust enough to allow parties to manage the transition from LIBOR to an ARR without the need for further action beyond the procedure outlined therein.
  2. Alternate fallback mechanisms. Where a credit agreement does not have a specific LIBOR fallback mechanism, reviewers should consider any alternative fallback mechanisms in the agreements that may nevertheless help establish a replacement. Examples of these alternative fallback mechanisms are provided below under b. Inability to Determine Rates/Market Disruption, c. Unavailability of Screen Rate/Absence of Quotation, and e. Illegality. The problem with these alternative mechanisms is that they may be an inadequate or suboptimal means of addressing a permanent transition away from using LIBOR as the interest rate benchmark. Provisions like those under b. Inability to Determine Rates/Market Disruption and c. Unavailability of Screen Rate/Absence of Quotation below, for instance, typically address temporary interruptions in the availability or publication of LIBOR and therefore may not be robust enough to address its permanent cessation. Similarly, illegality clauses that contemplate a scenario in which it would be illegal for the lenders to continue to advance LIBOR-based loans often require the lenders to suspend those loans or convert them to loans that comply with applicable law. For both the borrower and lenders, these measures may be highly disruptive and undesirable. A more targeted approach, such as that outlined in most specific LIBOR fallback provisions, that provides for a seamless transition from LIBOR to an acceptable ARR would almost certainly be preferable to all parties in most cases. Accordingly, agreements with fallback mechanisms that cannot adequately address the LIBOR transition should be advanced to the Amendment Analysis stage of the review.
  3. Cost considerations. Credit agreements often contain provisions like those under f. Increased Costs below that address the borrower’s responsibility to pay or reimburse the lenders for any additional costs incurred by them in connection with making or maintaining the loans, typically as a result of a change in law. The term “change in law” is often defined broadly to include a range of laws, regulations and rules that may be amended, adopted or otherwise introduced after the effective date of the agreement. LIBOR cessation is likely to be considered a “change in law” for the purposes of most credit agreements. Where a given agreement lacks sufficient fallback mechanisms to address LIBOR cessation, the borrower will want to consider the cost implications of having to amend or renegotiate the agreement and determine the most cost-efficient means of effecting a contractual solution to this issue. In this way, this step of the review overlaps with the Amendment Analysis stage discussed below.

3. Amendment Analysis

Finally, assuming there are affected agreements without adequate fallback mechanisms, the amendment analysis involves (a) identifying provisions that specifically address interest rate amendments and (b) determining the lender approval requirements for any such change. Each of these aspects is discussed in more detail below. In addition, the examples provided under Examples of LIBOR-related clauses, 3) Amendment Analysis illustrate the various contractual provisions that help with this stage of the review.

  1. Interest rate amendment requirements. Credit agreements often contain provisions that specifically address interest rate amendments, which will help guide reviewers on the requirements for making any such change to the agreement. The fact that these amendment provisions may refer to a “reduction” in the interest rate should generally not be a barrier to their application to LIBOR cessation. The proposed ARRs are not perfect replacements for LIBOR - at least some ARRs, for example, are secured overnight rates, meaning they are likely to be lower than the equivalent unsecured LIBOR setting. Furthermore, because these ARRs are not perfect replacements, adjustments to certain terms may be required to ensure that agreements are economically equivalent after the transition. In some cases, achieving precise economic equivalence may be quite challenging. For these reasons, the transition from LIBOR to an applicable ARR is likely to be enough of a change that parties could use the interest rate amendment provisions to make the necessary modifications to the agreement.
  2. Lender approvals. After the interest rate amendment language has been identified (or if the agreement contains no such specific amendment language), reviewers will want to confirm the lender approval requirements. Lender approval requirements for amendments to a credit agreement typically range from agent only approval, where only the administrative agent’s approval is required, to unanimous lender approval, where all lenders’ approval is required. Determining which lenders’ approval is needed and then obtaining that approval can be a time-consuming and expensive exercise. Thus, in cases where an amendment or renegotiation of a given agreement is needed to replace LIBOR, and the consent of multiple lenders is required, parties will want to start that process as soon as possible to ensure the necessary approvals are obtained in a timely manner. Note, as well, that should a credit agreement not specifically address requirements for interest rate amendments, reviewers will need to consider the more general amendment requirements and determine which level of approval (agreements often have several depending on the type of change) would be needed to replace LIBOR.

Software that uses AI to identify and extract clauses that are relevant to each of the above steps in the LIBOR cessation review framework can accelerate the work of finding these provisions and enable a more comprehensive review than can otherwise be done manually.

Below are examples of LIBOR-related clauses that would be useful for each stage of the three-part review framework discussed in this article. While these examples do not necessarily cover the full range of clauses of each kind one may encounter, they are meant to illustrate the degree to which these provisions can vary from contract to contract. Where an example includes broader contextual language, the relevant clause is highlighted in bold.

1. Impact Analysis


Definition of “Base Rate”

Example 1: From a Credit Agreement

Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day, subject to the interest rate floors set forth therein. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14 hereof, then the Alternate Base Rate shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above.

Example 2: From a Credit Agreement

Base Rate” shall mean, for any day, a fluctuating interest rate per annum in effect from time to time, which rate per annum shall be equal to the highest of:

(a) the rate of interest publicly announced by the Administrative Agent in New York City from time to time as its “base rate” in effect on such day;

(b) the sum of (i) 1/2 of 1% per annum and (ii) the Federal Funds Rate in effect on such day; and

(c) the sum of (i) 1% per annum and (ii) the rate equal to LIBOR for an Interest Period of one month for each day that an ABR Loan is outstanding (and in respect of any day that is not a Eurodollar Business Day, LIBOR as in effect on the immediately preceding Eurodollar Business Day).

Example 3: From a Credit Agreement

Base Rate” means the greatest of (a) the Federal Funds Rate plus 1/2%, (b) the LIBOR Rate (which rate shall be calculated based upon an Interest Period of 1 month and shal be determined on a daily basis), plus 1 percentage point, and (c) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate.


Definition of “LIBOR” or “Eurodollar Rate”

Example 1: From a Credit Agreement

LIBO Rate” means:

(a) for any Interest Period with respect to a LIBO Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and if the LIBO Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement; and

(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;

provided, that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

Example 2: From a Credit Agreement

Eurodollar Rate” means:

(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement; and

(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR (or a comparable or successor rate, as determined in accordance with clause (a) above), at or about 11:00 a.m., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;

provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

Example 3: From a Credit Agreement

London Interbank Offered Rate – With respect to any LIBOR Rate Loan, the rate of interest per annum in Dollars (rounded upwards, if necessary, at Lender’s option, to the next 100th of one percent) equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), for the applicable LIBOR Interest Period as published by Bloomberg (or such other commercially available source providing quotations of BBA LIBOR as designated by Lender from time to time) at approximately 11:00 A.M. (London time) 2 London Banking Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period; provided however, if more than one BBA LIBOR Rate is specified, the applicable rate shall be the arithmetic mean of all such rates. If, for any reason, such rate is not available, the term London Interbank Offered Rate shall mean, with respect to any LIBOR Rate Loan for the LIBOR Interest Period applicable thereto, the rate of interest per annum (rounded upwards, at Lender’s option, to the next 100th of one percent) determined by Lender to be the average rate of interest per annum at which deposits in Dollars are offered for such LIBOR Interest Period to major banks in London, England at approximately 11:00 A.M. (London time) 2 London Banking Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period.


Definition of “Applicable Margin”

Example 1: From a Credit Agreement

Applicable Margin” means the applicable percentage per annum set forth below determined by reference to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

Any increase or decrease in the Applicable Margin resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Level 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the date on which such Compliance Certificate is delivered. The Applicable Margin in effect from the Closing Date until adjusted as set forth above shall be set at Pricing Level 4.

Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Margin for any period shall be subject to the provisions of Section 2.10(b).

Example 2: From a Credit Agreement

Applicable Rate” means with respect to any Loans, for any day, (x) if the Senior Secured Leverage Ratio is greater than 2.50 to 1.00, (i) 3.50% per annum, in the case of an ABR Loan, or (ii) 4.50% per annum, in the case of a Eurodollar Loan, or (y) if the Senior Secured Leverage Ratio is less than or equal to 2.50 to 1.00, (i) 3.00% per annum, in the case of an ABR Loan, or (ii) 4.00% per annum, in the case of a Eurodollar Loan.

Example 3: From a Credit Agreement

Applicable Margin”: a rate per annum equal to the rate set forth below for the applicable type of Loan and opposite the applicable Average Daily Excess Availability Percentage:

Each change in the Applicable Margin resulting from a change in Average Daily Excess Availability Percentage for the most recent Fiscal Quarter ended immediately preceding the first day of a Fiscal Quarter shall be effective with respect to all Loans outstanding on and after such first day of such Fiscal Quarter. Notwithstanding the foregoing, Average Daily Excess Availability Percentage ( i) shall be deemed to be in Level II from the Closing Date to the date of delivery to the Administrative Agent of the Borrowing Base Certificate required by Subsection 7.2(f) for the first Fiscal Quarter ended at least three months after the Closing Date and (ii) shall be deemed to be in Level I at any time (after the expiration of the applicable cure period) during which the Borrower Representative has failed to deliver the Borrowing Base Certificate required by Subsection 7.2(f).

In addition, at all times while an Event of Default known to the Borrower Representative shall have occurred and be continuing, the Applicable Margin shall not decrease from that previously in effect as a result of the delivery of such Borrowing Base Certificate.


Definition of “Maturity Date” or “Termination Date”

Example 1: From a Credit Agreement

Maturity Date” means the earliest to occur of (i) June 1, 2022, (ii) the Springing Maturity Date, or (iii) any earlier date on which the Commitments are reduced to zero or otherwise terminated pursuant to the terms hereof; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next Business Day.

Example 2: From a Credit Agreement

Commitment Termination Date” means the later of (a) June 30, 2023 and (b) if the commitments are extended pursuant to Section 2.24, such extended termination date as determined pursuant to such Section 2.24; provided, however, that, in each case, if such date is not a Business Day, the Commitment Termination Date shall be the immediately preceding Business Day.

Example 3: From a Credit Agreement

Maturity Date” means July 19, 2031; provided that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.


Interest Rate

Example 1: From a Credit Agreement

SECTION 2.13 Interest.

(a) The Loans comprising ABR Borrowings (including Swingline Loans) shall bear interest at the Alternate Base Rate plus the Applicable Rate.

(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO Rate for theInterest Period in effect for such Borrowing plus the Applicable Rate.

(c) Each Protective Advance and each Overadvance shall bear interest at the Alternate Base Rate plus the Applicable Rate for Revolving Loans plus 2%.

Example 2: From a Credit Agreement

Section 3.02. Interest on ABR Loans. Each ABR Loan shall bear interest from the date of such ABR Loan until paid in full, or (if converted into a Eurodollar Loan) to (but excluding) the first day of the relevant Interest Period, payable in arrears on the last day of each calendar quarter, commencing with the first such date after the date hereof, and on the date such Loan is repaid, at a rate per annum (on the basis of (i) a 365-day year (366 days in the case of a leap year) if the Base Rate is calculated based on the “base rate” and (ii) a 360-day year if the Base Rate is calculated based on the Federal Funds Rate or LIBOR, for the actual number of days involved) equal to the sum of (i) the Applicable Margin for ABR Loans and (ii) the Base Rate in effect from time to time, which rate shall change as and when said Base Rate shall change.

Section 3.03. Interest on Eurodollar Loans. (a) Each Eurodollar Loan shall bear interest from the date of such Loan to (but excluding) the last day of the relevant Interest Period, or (if earlier) to (but excluding) the Termination Date, payable in arrears (A) with respect to Interest Periods of three months or less, on the last day of such Interest Period, and (B) with respect to Interest Periods longer than three months, on the date which occurs three months after the first day of such Interest Period and on the last day of such Interest Period, at a rate per annum (on the basis of a 360-day year for the actual number of days involved, with respect to each Interest Period), equal to the sum of (i) the Applicable Margin for Eurodollar Loans and (ii) LIBOR.

Example 3: From a Credit Agreement

SECTION 3.2.1 Interest Rates.

Subject to Section 3.2.2, the Borrowers may elect, pursuant to an appropriately delivered Borrowing Request or Continuation/Conversion Notice:

(a) a Borrowing of Loans that accrue interest at a rate per annum equal to the sum of the Base Rate from time to time in effect plus the Applicable Base Rate Margin; and

(b) a Borrowing of Loans that accrue interest at a rate per annum equal to LIBOR for such Interest Period plus the Applicable LIBOR Margin,

provided, that any Incremental Term Loans or Revolving Loans shall accrue interest as provided in the amendment or supplement to this Agreement evidencing such Incremental Term Loans.

2) Fallback Analysis

LIBOR Fallback Mechanism

Example 1: From a Credit Agreement

(f) Alternate Rate of Interest. If at any time the Administrative Agent determines (which determination shall be made by notice to the Borrower and shall be conclusive and binding absent manifest error) that (i) the circumstances set forth in Section 2.08(b)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in Section 2.08 (b)(i) have not arisen but either (w) the supervisor for the administrator of the Screen Rate has made a public statement that the administrator of the Screen Rate is insolvent (and there is no successor administrator that will continue publication of the Screen Rate), (x) the administrator of the Screen Rate has made a public statement identifying a specific date after which the Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the Screen Rate), (y) the supervisor for the administrator of the Screen Rate has made a public statement identifying a specific date after which the Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the Screen Rate or a governmental authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower may endeavor to establish an alternate rate of interest to LIBOR that gives due consideration to the then evolving or prevailing market convention for determining a rate of interest for similar syndicated loans in the United States at such time, and may enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin); provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 9.01, in the case of any proposed alternative rate of interest, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date that a copy of the amendment is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this Section 2.08(f) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.08(f), only to the extent the Screen Rate for the applicable currency and such Interest Period is not available or published at such time on a current basis), (x) any Eurocurrency Rate Advances requested to be made, converted or continued as or into, as applicable, Eurocurrency Rate Advances shall automatically (in the case of conversions or continuations, on the last day of the then existing Interest Period) be made, converted or continued as or into, as applicable, Base Rate Advances and (y) any Notice of Borrowing that requests the making of a Eurocurrency Rate Advance shall be ineffective.

Example 2: From a Credit Agreement

4.6 Successor LIBOR Rate Index.

(i) If the Administrative Agent determines (which determination shall be final and conclusive, absent manifest error) that either (a) (i) the circumstances set forth in Section 4.4 have arisen and are unlikely to be temporary, or (ii) the circumstances set forth in Section 4.4 have not arisen but the applicable supervisor or administrator (if any) of the LIBOR Rate or an Official Body having jurisdiction over the Administrative Agent has made a public statement identifying the specific date after which the LIBOR Rate shall no longer be used for determining interest rates for loans (either such date, a “LIBOR Termination Date”), or (b) a rate other than the LIBOR Rate has become a widely recognized benchmark rate for newly originated loans in Dollars in the U.S. market, then the Administrative Agent may (in consultation with the Borrowers) choose a replacement index for the LIBOR Rate and make adjustments to applicable margins and related amendments to this Agreement as referred to below such that, to the extent practicable, the all-in interest rate based on the replacement index will be substantially equivalent to the all-in LIBOR Rate-based interest rate in effect prior to its replacement.

(ii) The Administrative Agent and the Loan Parties shall enter into an amendment to this Agreement to reflect the replacement index, the adjusted margins and such other related amendments as may be appropriate, in the discretion of the Administrative Agent, for the implementation and administration of the replacement index-based rate. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including, without limitation, Section 11.1), such amendment shall become effective without any further action or consent of any other party to this Agreement at 5:00 p.m. New York City time on the tenth (10th) Business Day after the date a draft of the amendment is provided to the Banks, unless the Administrative Agent receives, on or before such tenth (10th) Business Day, a written notice from the Required Banks stating that such Banks object to such amendment.

(iii) Selection of the replacement index, adjustments to the applicable margins, and amendments to this Agreement (i) will be determined with due consideration to the then-current market practices for determining and implementing a rate of interest for newly originated loans in the United States and loans converted from a LIBOR Rate-based rate to a replacement index-based rate, and (ii) may also reflect adjustments to account for (x) the effects of the transition from the LIBOR Rate to the replacement index and (y) yield- or risk-based differences between the LIBOR Rate and the replacement index.

(iv) Until an amendment reflecting a new replacement index in accordance with this Section 4.6 is effective, each advance, conversion and renewal of a Loan under the LIBOR Rate Option will continue to bear interest with reference to the LIBOR Rate; provided however, that if the Administrative Agent determines (which determination shall be final and conclusive, absent manifest error) that a LIBOR Termination Date has occurred, then following the LIBOR Termination Date, all Loans as to which the LIBOR Rate Option would otherwise apply shall automatically be converted to the Base Rate Option until such time as an amendment reflecting a replacement index and related matters as described above is implemented.

(v) Notwithstanding anything to the contrary contained herein, if at any time the replacement index is less than zero, at such times, such index shall be deemed to be zero for purposes of this Agreement.

Example 3: From a Credit Agreement

(c) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (b)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (b)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made a public statement that the administrator of the LIBO Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Eurodollar Rate for Five-Year Loans that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin); provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 9.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Five-Year Lenders, a written notice from the Majority Facility Lenders in respect of the Five-Year Facility stating that such Majority Facility Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (c) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.12(c), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any request for a conversion of a Five-Year Borrowing to, or continuation of any Five-Year Borrowing as, a Eurodollar Borrowing shall be ineffective and (y) any request for a Five-Year Eurodollar Borrowing shall be made as an ABR Borrowing.


Inability to Determine Rates/Market Disruption

Example 1: From a Credit Agreement

3.6 Market disruption; non-availability.

3.6.1 If and whenever, at any time prior to the commencement of any Interest Period, the Bank shall have determined (which determination shall, in the absence of manifest error, be conclusive):

(a) that adequate and fair means do not exist for ascertaining LIBOR or (as the case may be) EURIBOR during such Interest Period; or

(b) that deposits in Dollars or any Optional Currency are not available to the Bank in the London Interbank Market or (as the case may be) the European Interbank Market in the ordinary course of business in sufficient amounts to fund the Loan or (as the case may be) the Aggregate Liabilities (or a part thereof) for such Interest Period, the Bank shall forthwith give notice (a “Determination Notice”) thereof to the Borrowers. A Determination Notice shall contain particulars of the relevant circumstances giving rise to its issue. After the giving of any Determination Notice the undrawn amount of the Commitment and the Overdraft Facility shall not be borrowed and no further L/Cs may be issued until notice to the contrary is given to the Borrowers by the Bank.

3.6.2 During the period of ten (10) days after any Determination Notice has been given by the Bank under clause 3.6.1, the Bank shall certify an alternative basis (the “Substitute Basis”) for maintaining the Loan or (as the case may be) the Aggregate Liabilities. The Substitute Basis may (without limitation) include alternative interest periods, alternative currencies or alternative rates of interest but shall include a margin above the cost of funds, including Additional Cost, if any, to the Bank equivalent to the Margin. Each Substitute Basis so certified shall be binding upon the Borrowers and shall take effect in accordance with its terms from the date specified in the Determination Notice until such time as the Bank notifies the Borrowers that none of the circumstances specified in clause 3.6.1 continues to exist whereupon the normal interest rate fixing provisions of this Agreement shall apply.

Example 2: From a Credit Agreement

2.17 Inability to Determine Interest Rate. If prior to the first day of any Interest Period for any Eurodollar Loan:

(a) the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or

(b) the Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that by reason of any changes arising after the date of this Agreement the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lenders) of making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall give written notice thereof (including by telecopy) to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (i) any Eurodollar Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as ABR Loans, (ii) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans and (iii) any outstanding Eurodollar Loans under the relevant Facility shall be converted, on the last day of the then-current Interest Period with respect thereto, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent (which action the Administrative Agent will take promptly after the conditions giving rise to such notice no longer exist), no further Eurodollar Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to Eurodollar Loans.

Example 3: From a Credit Agreement

SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurocurrency Borrowing denominated in any currency:

(A) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means (including, without limitation, by means of an Interpolated Rate) do not exist for ascertaining the Adjusted Benchmark Rate for such Interest Period; or

(B) the Administrative Agent is advised by the Required Lenders that the Adjusted Benchmark Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurocurrency Borrowing denominated in such currency shall be ineffective and (ii) such Borrowing shall be converted to or continued as on the last day of the Interest Period applicable thereto (A) if such Borrowing is denominated in Dollars, an ABR Borrowing or (B) if such Borrowing is denominated in a Foreign Currency, as a Borrowing bearing interest at such rate as the Administrative Agent determines adequately reflects the costs to the Lenders of making or maintaining such Borrowing, and (ii) if any Borrowing Request requests a Eurocurrency Borrowing in such currency, such Borrowing shall be made as an ABR Borrowing (if such Borrowing is requested to be made in Dollars) or shall be made as a Borrowing bearing interest at such rate as the Administrative Agent determines adequately reflects the costs to the Lender of making or maintaining such Borrowing.


Unavailability of Screen Rate/Absence of Quotation

Example 1: From a Credit Agreement

Eurodollar Rate” means, with respect to any Eurodollar Borrowing for any Interest Period therefor, the rate per annum equal to the arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered rates for deposits in Dollars with a term comparable to such Interest Period that appears on Reuters Screen LIBOR01 Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London, England time, on the second full Business Day preceding the first day of such Interest Period; provided, however, that (i) if no comparable term for an Interest Period is available, the Eurodollar Rate shall be determined using the weighted average of the offered rates for the two terms most nearly corresponding to such Interest Period and (ii) if Reuters Screen LIBOR01 Page shall at any time no longer exist, “Eurodollar Rate” shall mean, with respect to each day during each Interest Period pertaining to Eurodollar Borrowings comprising part of the same Borrowing, the rate per annum equal to the rate at which the Administrative Agent is offered deposits in Dollars at approximately 11:00 a.m., London, England time, two Business Days prior to the first day of such Interest Period in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to its portion of the amount of such Eurodollar Borrowing to be outstanding during such Interest Period.

Example 2: From a Credit Agreement

LIBOR” means,

(a) for any interest rate calculation with respect to a LIBOR Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) two (2) London Banking Days prior to the first day of the applicable Interest Period. If, for any reason, such rate does not appear on Reuters Screen LIBOR01 (or any applicable successor page), then “LIBOR” shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) London Banking Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period, and

(b) for any interest rate calculation with respect to a Base Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for an Interest Period equal to one month (commencing on the date of determination of such interest rate) which appears on the Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day. If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page) then “LIBOR” for such Base Rate Loan shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) on such date of determination for a period equal to one month commencing on such date of determination.

Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent manifest error.

Example 3: From a Credit Agreement

Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1/2 of 1%, and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively.


Definition “Interest Period”

Example 1: From a Credit Agreement

Interest Period” means, (i) with respect to any LIBOR Loan other than a Daily LIBOR Loan, the period commencing on the Draw Date or Continuation Date for such LIBOR Loan and ending on the date that shall be the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) of the calendar month that is one (1), two (2), three (3) or six (6) months after the commencement of such period, in accordance with Borrower’s election made pursuant to the terms of this Agreement; provided, however, that if an Interest Period would end on a day that is not a LIBOR Business Day, such Interest Period shall be extended to the next succeeding LIBOR Business Day, unless such next succeeding LIBOR Business Day would fall in the next calendar month, in which case such Interest Period shall end on the immediately preceding LIBOR Business Day, and (i) with respect to a Daily LIBOR Loan, one day, provided, however, that if an Interest Period would end on a day that is not a LIBOR Business Day, such Interest Period shall be extended to the next succeeding LIBOR Business Day

Example 2: From a Credit Agreement

Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter (in each case, subject to availability), as selected by the Borrowers in their Committed Loan Notice, or such other period that is twelve months or less requested by the Borrowers and consented to by all of the Appropriate Lenders; provided that:

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Rate Loan, such Business Day fals in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(b) any Interest Period pertaining to any Eurodolar Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shal end on the last Business Day of the calendar month at the end of such Interest Period; and

(c) no Interest Period shall extend beyond the next earliest Revolving Credit Facility Maturity Date or Term Facility Maturity Date, as applicable.

Example 3: From a Credit Agreement

Interest Period” for any Libor Loan means the period of one (1), two (2) or three (3) months, as selected by the Borrower in a Borrowing Request commencing on each Borrowing Date of such Libor Loan; provided that any Interest Period which would otherwise end on a day which is not a New York Banking Day and a London Banking Day shall be extended or shortened in accordance with the Modified Following Business Day Convention to end on such a day.


Illegality

Example 1: From a Credit Agreement

Section 4.3. Illegality. Notwithstanding any other provision of this Agreement, if any Lender shall determine (which determination shall be conclusive and binding) that it is unlawful for such Lender to honor its obligation to make or maintain LIBOR Loans hereunder, then such Lender shall promptly notify the Borrower thereof (with a copy of such notice to the Administrative Agent) and such Lender’s obligation to make or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be suspended until such time as such Lender may again make and maintain LIBOR Loans (in which case the provisions of Section 4.5. shall be applicable).

Example 2: From a Credit Agreement

Section 3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, the Australian BBSR Rate or the Canadian BA Rate, or to determine or charge interest rates based upon the Eurodollar Rate, the Australian BBSR Rate or the Canadian BA Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, U.S. Dollars or any Alternative Currency in the applicable interbank market, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans, Australian BBSR Rate Loans or Canadian BA Rate Loans in the affected currency or currencies or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case, until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay such Eurodollar Rate Loans, Australian BBSR Rate Loans or Canadian BA Rate Loans or, if applicable and such Loans are denominated in U.S. Dollars, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans or (y) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans (the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate), the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans, Australian BBSR Rate Loans or Canadian BA Rate Loans. Upon any such prepayment or conversion, the applicable Borrowers shall also pay accrued interest on the amount so prepaid or converted.

Example 3: From a Credit Agreement

(b) Laws Affecting LIBOR Rate or Canadian BA Rate Availability. If, after the date hereof, the introduction of, or any change in, any Applicable Law or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any of the Lenders (or any of their respective Lending Offices) with any request or directive (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency made or issued after the date hereof, shall make it unlawful or impossible for any of the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate Loan, Canadian BA Rate Loan, Base Rate Loan or Canadian Base Rate Loan as to which the interest rate is determined by reference to LIBOR or the Canadian BA Rate, such Lender shall promptly give notice thereof to Administrative Agent and Administrative Agent shall promptly give notice to the Borrowers and the other Lenders. Thereafter, until Administrative Agent notifies the Borrowers that such circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR Rate Loans, Canadian BA Rate Loans, Base Rate Loans or Canadian Base Rate Loans as to which the interest rate is determined by reference to LIBOR or the Canadian BA Rate, as the case may be, and the right of the Borrowers to convert any Revolving Loan to a LIBOR Rate Loan or Canadian BA Rate or continue any Revolving Loan as a LIBOR Rate Loan or Canadian BA Rate Loan, as the case may be, shall be suspended and thereafter the Borrowers may select only Base Rate Loans and Canadian Base Rate Loans, as applicable, as to which the interest rate is not determined by reference to LIBOR or the Canadian BA Rate hereunder, (ii) all Base Rate Loans and all Canadian Base Rate Loans shall cease to be determined by reference to LIBOR or the Canadian BA Rate, as the case may be and (iii) if any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan or Canadian BA Rate Loan to the end of the then current Interest Period applicable thereto, the applicable Revolving Loan shall immediately be converted to a Base Rate Loan or a Canadian Base Rate Loan, as applicable, as to which the interest rate is not determined by reference to LIBOR or the Canadian BA Rate for the remainder of such Interest Period.


Increased Costs

Example 1: From a Credit Agreement

SECTION 2.15 Increased Costs. (a) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;

(ii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or

(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then the Borrowers will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

Example 2: From a Credit Agreement

(b) Additional Costs. In addition to, and not in limitation of the immediately preceding subsection, the Borrower shall promptly pay to the Administrative Agent for the account of a Lender from time to time such amounts as such Lender may determine to be necessary to compensate such Lender for any costs incurred by such Lender that it reasonably determines are attributable to its making or maintaining of any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any reduction in any amount receivable by such Lender under this Agreement or any of the other Loan Documents in respect of any of such LIBOR Loans or such obligation or the maintenance by such Lender of capital in respect of its LIBOR Loans or its Commitments (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting from any Regulatory Change that:

(i) changes the basis of taxation of any amounts payable to such Lender under this Agreement or any of the other Loan Documents in respect of any of such LIBOR Loans or its Commitments (other than Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and Connection Income Taxes);

(ii) imposes or modifies any reserve, special deposit, compulsory loan, insurance charge or similar requirements (other than Regulation D of the Board of Governors of the Federal Reserve System or other similar reserve requirement applicable to any other category of liabilities or category of extensions of credit or other assets by reference to which the interest rate on LIBOR Loans is determined to the extent utilized when determining LIBOR for such Loans) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, or other credit extended by, or any other acquisition of funds by such Lender (or its parent corporation), or any commitment of such Lender (including, without limitation, the Commitments of such Lender hereunder); or

(iii) imposes on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or the Loans made by such Lender.

Example 3: From a Credit Agreement

(a) Increased Costs Generally. If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, the Lender;

(ii) subject the Lender to any Taxes and Other Taxes payable by the Lender (other than Excluded Taxes) with respect to this Agreement or any Loan made by it, or change the basis of taxation of payments to the Lender in respect thereof; or

(iii) impose on the Lender any other condition, cost or expense affecting this Agreement or Loan made by the Lender;

and the result of any of the foregoing shall be to increase the cost to the Lender of making or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal, interest or any other amount) then, upon request of the Lender, the Borrower will pay to the Lender such additional amount or amounts as will compensate the Lender for such additional costs incurred or reduction suffered. The Lender agrees to use reasonable efforts to avoid or to minimize any amounts which might otherwise be payable pursuant to this Section 3.6, at the cost and expense of the Borrower.


Definition “Change in Law”

Example 1: From a Credit Agreement

Change in Law” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

Example 2: From a Credit Agreement

Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any Legal Requirement, (b) any change in any Legal Requirement or in the administration, interpretation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, however, for purposes of this Agreement, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith are deemed to have gone into effect and to have been adopted after the Closing Date.

Example 3: From a Credit Agreement

Change in Law” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.

3) Amendment Analysis

Interest Rate Amendment

Example 1: From a Credit Agreement

35.2 Exceptions

(a) An amendment or waiver that has the effect of changing or which relates to:…

(iii) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable (other than where paragraph (c) below applies);…

shall not be made without the prior consent of all the Lenders.

Example 2: From a Credit Agreement

11.1 Amendments and Waivers. (a) Neither this Agreement nor any other Loan Document, nor any terms hereof or thereof, may be amended, supplemented, modified or waived except in accordance with the provisions of this Subsection 11.1. The Required Lenders may, or, with the written consent of the Required Lenders, the Administrative Agent may, from time to time, (x) enter into with the respective Affiliate Guarantors or Loan Parties hereto or thereto, as the case may be, written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or to the other Loan Documents or changing, in any manner the rights or obligations of the Lenders or the Affiliate Guarantors or Loan Parties hereunder or thereunder or (y) waive at any Affiliate Guarantor’s or Loan Party’s request, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that amendments pursuant to Subsections 11.1(d) and 11.1(f) may be effected without the consent of the Required Lenders to the extent provided therein; provided, further, that no such waiver and no such amendment, supplement or modification shall:…

(B) reduce the stated rate of any interest, commission or fee payable hereunder (other than as a result of any waiver of the applicability of any post-default increase in interest rates)…

in each case without the consent of each Lender directly and adversely affected thereby.

Example 3: From a Credit Agreement

(b) Amendments and Waivers Pertinent to Affected Lenders. Notwithstanding clause (a) above, no amendment, waiver or consent shall:…

(iii) reduce or forgive the principal of, or the rate of interest or any premium specified herein on, any Loan or any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders will be required to amend the definition of “Default Rate”;


Agent Only Approval

Example 1: From a Credit Agreement

LIBOR Rate Replacement. Subject to any general provisions herein regarding conversion from the LIBOR Rate, including, without limitation, §4.4 and §4.5(a), if for any reason the Administrative Agent shall determine that (i) the LIBOR Rate (as defined herein) no longer exists, substantively, or is otherwise unavailable for an extended period of time (as determined by the Administrative Agent in its sole discretion) including because (a) dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Loan and such circumstances are unlikely to be temporary or (b) reasonable and adequate means do not exist for ascertaining the LIBOR Rate for such Interest Period with respect to a proposed LIBOR Rate Loan and such circumstances are unlikely to be temporary, (ii) any applicable interest rate specified herein is no longer a widely recognized benchmark rate for newly originated loans in the United States syndicated loan market in the applicable currency or (iii) the applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any governmental authority having, or purporting to have, jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which any applicable interest rate specified herein shall no longer be used for determining interest rates for loans in the United States syndicated loan market in the applicable currency, then the applicable interest rate for each applicable Interest Period hereunder may be determined by such comparable alternate method designed to measure interest rates in a manner similar to the method in effect prior to LIBOR Rate’s unavailability, all as determined and selected by the Administrative Agent in its sole discretion (subject to the limitations set forth in this §4.5(b)). Any successor/replacement index and alternate methodology shall be an interest-based index, variations in the value of which can reasonably be expected to measure contemporaneous variations in the cost of newly borrowed funds in United States Dollars, as determined by the Administrative Agent in its sole discretion (subject to the limitations set forth in this §4.5(b)). In connection with the establishment and application of any successor/replacement index and alternate methodology, this Agreement and the other Loan Documents shall be amended solely with the consent of the Administrative Agent, as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including, without limitation, §26), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the delivery of such amendment to the Lenders, written notices from such Lenders that in the aggregate constitute Required Lenders, with each such notice stating that such Lender objects to such amendment (which such notice shall note with specificity the particular provisions of the amendment to which such Lender objects), in which case the last sentence of §4.4 shall apply following such objection by the Required Lenders. In order to account for the relationship of the replacement index to the pre-existing and applicable LIBOR Rate, such alternate method, and the amendment referred to above, shall incorporate any additional spread or margin to any replacement index as is necessary, in the Administrative Agent’s sole discretion, in an effort to ensure that the alternate method will measure interest rates in a manner similar to the pre-existing LIBOR Rate.

Example 2: From a Credit Agreement

(b) Notwithstanding anything to the contrary in Section 2.14(a), if the Administrative Agent has made the determination (such determination to be conclusive absent manifest error) that (i) the circumstances described in Section 2.14(a) (i) have arisen and that such circumstances are unlikely to be temporary, (ii) any applicable interest rate specified herein is no longer a widely recognized benchmark rate for newly originated loans in the U.S. syndicated loan market in the applicable currency or (iii) the applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any Governmental Authority having or purporting to have jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which any applicable interest rate specified herein shall no longer be used for determining interest rates for loans in the U.S. syndicated loan market in the applicable currency, then the Administrative Agent may, to the extent practicable (in consultation with the Borrower and as determined by the Administrative Agent to be generally in accordance with similar situations in other transactions in which it is serving as administrative agent or otherwise consistent with market practice generally), establish a replacement interest rate which shall, in no event, be less than zero (the “Replacement Rate”), in which case, the Replacement Rate shall, subject to the next two sentences, replace such applicable interest rate for all purposes under the Loan Documents unless and until (A) an event described in Section 2.14(a)(i), (b)(i), (b)(ii) or (b)(iii) occurs with respect to the Replacement Rate or (B) the Administrative Agent (or the Required Lenders through the Administrative Agent) notifies the Borrower that the Replacement Rate does not adequately and fairly reflect the cost to the Lenders of funding the Loans bearing interest at the Replacement Rate. In connection with the establishment and application of the Replacement Rate, this Agreement and the other Loan Documents shall be amended solely with the consent of the Administrative Agent and the Borrower, as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14(b). Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including, without limitation, Section 9.02), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the delivery of such amendment to the Lenders, one or more written notices from such Lenders that in the aggregate constitute the Required Lenders, with each such notice stating that such Lenders object to such amendment. To the extent the Replacement Rate is approved by the Administrative Agent in connection with this Section 2.14(b), the Replacement Rate shall be applied in a manner consistent with market practice; provided that, in each case, to the extent such market practice is not administratively feasible for the Administrative Agent, such Replacement Rate shall be applied as otherwise reasonably determined by the Administrative Agent (it being understood that any such modification by the Administrative Agent shall not require the consent of, or consultation with, any of the Lenders).

Example 3: From a Credit Agreement

(ii) The Administrative Agent and the Borrowers shall enter into an amendment to this Agreement to reflect the replacement index and such other related amendments as may be appropriate, in the discretion of the Administrative Agent, for the implementation and administration of the replacement index-based rate (but for avoidance of doubt, such related amendments shall not include a reduction of the Applicable Rate). Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including, without limitation, Section 12.1 [Modifications, Amendments or Waivers]), such amendment shall become effective without any further action or consent of any other party to this Agreement at 5:00 p.m. Eastern Time on the tenth (10th) Business Day after the date a draft of the amendment is provided to the Lenders, unless the Administrative Agent receives, on or before such tenth (10th) Business Day, a written notice from the Required Lenders stating that such Lenders object to such amendment.

Affected Lender Approval

Example 1: From a Credit Agreement

(b) Subject to Section 2.12(c) and Section 9.02(c) below, neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders or by the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon (other than with respect to default interest), or reduce any fees payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby, (iv) change Section 2.07(c) or 2.16(b) or (c), or any other provision of this Agreement, in a manner that would alter the ratable reduction of Commitments or the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) release the Company from the Company Guaranty without the written consent of each Lender, (vi) change the payment waterfall provisions of Section 2.18(b) or 7.02 without the written consent of each Lender, (vii) amend Section 1.05 or the definition of “Alternative Currency” without the written consent of each Lender, (viii) release any Borrower from its obligations hereunder without the written consent of each Lender or (ix) change any of the provisions of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; provided, however, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest or fees payable on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender, and provided, further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Lenders hereunder without the prior written consent of the Administrative Agent or the Issuing Lenders, as the case may be; provided, further that no such agreement shall amend or modify the provisions of Section 2.04 or any letter of credit application and any bilateral agreement between any Borrower and any Issuing Lender regarding such Issuing Lender’s Letter of Credit Commitment or the respective rights and obligations between any Borrower and any Issuing Lender in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and such Issuing Lender, respectively.

Example 2: From a Credit Agreement

13.1. Amendments and Waivers.

(a) Except as provided in Section 2.17 with respect to any Incremental Facility, Section 2.18 with respect to any Refinancing Amendment and Section 2.19 with respect to any Extension, no amendment, waiver or other modification of any provision of this Agreement or any other Loan Document (other than the Agency Fee Letter), and no consent with respect to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless the same shall be in writing and signed by the Required Lenders (or by Agent at the written request of the Required Lenders) and the Loan Parties that are party thereto and acknowledged by the Agent and then any such waiver or consent shall be effective, but only in the specific instance and for the specific purpose for which given; provided, that no such waiver, amendment, or consent shall, unless in writing and signed by all of the Lenders directly and adversely affected thereby and all of the Loan Parties that are party thereto, do any of the following:

(i) increase the amount of or extend the expiration date of any Commitment of any Lender,

(ii) postpone or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees, or other amounts due hereunder or under any other Loan Document (except with respect to an Extension Offer or any waiver of any mandatory prepayment required pursuant to Section 2.4(b)(i) through (v)),

(iii) reduce the principal of, or the rate of interest on, any loan or other extension of credit hereunder, or reduce any fees or other amounts payable hereunder or under any other Loan Document (except in connection with the waiver of applicability of Section 2.5(b) or the terms thereof (which waiver shall be effective with the written consent of the Required Lenders)),

(iv) amend, modify, or eliminate this Section or any provision of this Agreement providing for consent or other action by all Lenders,

(v) amend, modify, or eliminate Section 3.1,

(vi) other than as permitted by Section 14.11, release Agent’s Lien in and to all or substantially all of the Collateral,

(vii) amend, modify, or eliminate the definitions of “Required Lenders” or “Pro Rata Share” (except, with respect to “Pro Rata Share”, in connection with an Extension), or

(viii) other than in connection with a merger, amalgamation, liquidation, dissolution or sale of such Person expressly permitted by the terms hereof or the other Loan Documents, release the Borrower or substantially all Guarantors from any obligation for the payment of money or consent to the assignment or transfer by the Borrower or substantially all Guarantors of any of its rights or duties under this Agreement or the other Loan Documents.

Example 3: From a Credit Agreement

11.6 Amendments, Etc.

No amendment or waiver of any provision of this Credit Agreement or any other Credit Document, and no consent to any departure by the Borrower therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:…

(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.2) without the written consent of such Lender;

(c) postpone any date fixed by this Credit Agreement or any other Credit Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of the Revolving Committed Amount hereunder or under any other Credit Document without the written consent of each Lender directly affected thereby;

(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (v) of the second proviso to this Section 11.6) any fees or other amounts payable hereunder or under any other Credit Document without the written consent of each Lender directly affected thereby;


Majority Class Approval

Example 1: From a Credit Agreement

(b) Neither this Agreement nor any provision hereof may be waived, amended, amended and restated or modified except as provided in Sections 2.02, 2.11, 2.19 and 2.20 or pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall…(vi) adversely affect the rights of any Class in respect of payments due to Lenders of such Class in a manner different to the effect of such amendment, waiver or consent on any other Class without the written consent of the Required Class Lenders of such Class (it being understood that the Required Lenders may waive, in whole or in part, any prepayment of Loans hereunder so long as the application, as between Classes, of any portion of such prepayment that is still required to be made is not altered);

Example 2: From a Credit Agreement

10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:…

(b) without limiting the generality of clause (a) above, waive any condition set forth in Section 4.02 as to any Credit Extension under a particular Facility without the written consent of the Required Revolving Lenders, the Required Term A Lenders or the Required CAD Term Lenders, as the case may be;

Example 3: From a Credit Agreement

(b) Subject to Section 2.14(b) and Section 9.02(c) through 9.02(f) below and except as provided in Section 2.21 with respect to an Incremental Term Loan Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement (including any Incremental Term Loan Amendment) shall…(ix) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of any Class differently than Lenders holding Loans of any other Class, without the written consent of the Required Revolving Lenders and the Required Term Lenders, as the case may be, of the Class of Loans adversely affected thereby.


Required Lender Approval

Example 1: From a Credit Agreement

(a) Subject to Section 2.13(b), Section 2.19(g), Section 2.21(e) and Section 2.22(e) above and Section 9.02(c) below, neither this Agreement, any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders or by the Borrowers and the Administrative Agent with the consent of the Required Lenders;

Example 2: From a Credit Agreement

(b) Neither this Agreement, any provision hereof, nor any provisions of the Subsidiary Guaranties may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;

Example 3: From a Credit Agreement

(b) Subject to Section 2.14(b) with respect to the implementation of a Replacement Rate, neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;


Supermajority Approval

Example 1: From a Credit Agreement

SECTION 13.2 Amendments, Waivers and Consents. Except as set forth below or as specifically provided in any Loan Document, any term, covenant, agreement or condition of this Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any consent given by the Lenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required Lenders (or by Administrative Agent with the consent of the Required Lenders) and delivered to Administrative Agent and, in the case of an amendment, signed by the Borrowers; provided, that no amendment, waiver or consent shall:…

(h) increase any advance rate percentage set forth in the definition of “Borrowing Base” without the written consent of each Lender or otherwise change the definition of the term “Borrowing Base” or any component definition thereof if as a result thereof the amounts available to be borrowed by the Borrowers would be increased without the written consent of the Supermajority Lenders, provided, that, the foregoing shall not limit the discretion of Administrative Agent to change, establish or eliminate any Reserves;

Example 2: From a Credit Agreement

(c) No amendment, waiver, modification, elimination, or consent shall amend, modify, or eliminate (i) the definition of U.S. Borrowing Base (or any of the defined terms (including the definitions of Eligible Accounts, Eligible Inventory, and Eligible Equipment) that are used in such definition) to the extent that any such change results in more credit being made available to U.S. Borrowers based upon the U.S. Borrowing Base, but not otherwise, the last paragraph of Section 2.1(a), (ii) the definition of U.S. Maximum Revolver Amount, (iii) the definition of “ABL Priority Collateral” contained in the Intercreditor Agreement or (iv) Section 4.01 of the Intercreditor Agreement, in each case, without the written consent of Agent, Borrowers, and the Supermajority Lenders;

(d) No amendment, waiver, modification, elimination, or consent shall amend, modify, or eliminate the definition of Australian Borrowing Base (or any of the defined terms (including the definitions of Eligible Accounts, Eligible Inventory, In-Transit Inventory, and Eligible Equipment) that are used in such definition) to the extent that any such change results in more credit being made available to Australian Borrowers based upon the Australian Borrowing Base, but not otherwise, the last paragraph of Section 2.1(b), or the definition of Australian Maximum Revolver Amount, in each case, without the written consent of Agent, Borrowers, and the Supermajority Lenders;

Example 3: From a Credit Agreement

(ii) Notwithstanding the foregoing, no such waiver, amendment, or consent shall be effective to modify eligibility criteria, reserves or sublimits contained in the definition of “U.S. Borrowing Base”, “Canadian Borrowing Base”, “Merchandise and Consumables Inventory Formula Amount”, “Eligible Rental Equipment” or “Reserves” or any successor or related definition, in each case that would have the effect of increasing Combined Availability or any Borrowing Base unless it is consented to in writing by the Supermajority Lenders and the Borrowers;


Unanimous Lender Approval

Example 1: From a Credit Agreement

(b) Additional Lender Consents. In addition to the foregoing requirements, no amendment, waiver or consent shall:…

(iv) modify the definition of “Termination Date”, or otherwise postpone any date fixed for, or forgive, any payment of principal of, or interest on, any Term Loans or for the payment of Fees or any other Obligations owing to the Lenders, in each case, without the written consent of each Lender;

(v) [reserved];

(vi) modify the definition of “Pro Rata Share” or amend or otherwise modify the provisions of Section 3.2. or Section 10.5. without the written consent of each Lender;

(vii) amend subsection (a) or this subsection (b) of this Section 12.6. or amend the definitions of the terms used in this Agreement or the other Loan Documents insofar as such definitions affect the substance of this Section without the written consent of each Lender;

(viii) modify the definition of the term “Requisite Lenders” or modify in any other manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof without the written consent of each Lender; or

(ix) release any Guarantor from its obligations under the Guaranty (except as contemplated by Sections 7.13. and 7.14.) without the written consent of each Lender.

Example 2: From a Credit Agreement

Section 11.2 Amendments, Waivers and Consents. Except as set forth below or as specifically provided in any Loan Document, any term, covenant, agreement or condition of this Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any consent given by the Lenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by the Borrower; provided, that no amendment, waiver or consent shall:…

(f) consent to the assignment or transfer by any Credit Party of such Credit Party’s rights and obligations under any Loan Document to which it is a party (except as permitted pursuant to Section 7.4), in each case, without the written consent of each Lender;

(g) release Guarantors comprising substantially all of the credit support for the Guaranteed Obligations (other than as authorized in Section 9.9), without the written consent of each Lender;

Example 3: From a Credit Agreement

(a) Neither this Agreement nor any other Loan Document (other than the Support Agreement (except as provided in clause (viii) below)) nor any of the terms hereof or thereof may be amended, changed, waived, discharged or terminated unless such amendment, change, waiver, discharge or termination is in writing and signed by the Required Lenders, the Borrower and the Parent; provided that no such amendment, change, waiver, discharge or termination shall without the consent of each Lender affected thereby:…

(x) change Section 2.21 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender.