Benchmark Replacement Modification Agreement, dated as of May 2, 2023, by and among Wells Fargo Bank, National Association, as administrative agent, Aurora Convention Center Hotel, LLC, Aurora Convention Center Hotel Lessee, LLC, and each of the lenders party thereto (relating to the Second Amended and Restated Loan Agreement entered into as of July 2, 2019, among Aurora Convention Center Hotel, LLC, Aurora Convention Center Hotel Lessee, LLC, Wells Fargo Bank, National Association, as administrative agent, and the financial institutions from time to time party thereto, as amended)
Exhibit 10.1
BENCHMARK REPLACEMENT MODIFICATION AGREEMENT
(Adjusted Daily Simple SOFR)
THIS BENCHMARK REPLACEMENT MODIFICATION AGREEMENT (this “Agreement”) is dated as of May [__], 2023, by and among Wells Fargo Bank, National Association, a national banking association, in its capacity as administrative agent (in such capacity, collectively with its successors and assigns, “Administrative Agent”), AURORA CONVENTION CENTER HOTEL, LLC, a Delaware limited liability company (“Borrower”), AURORA CONVENTION CENTER HOTEL LESSEE, LLC, a Delaware limited liability company (“Operating Lessee”), and each of the lenders party to the Loan Agreement (defined below) (each a “Lender” and, collectively, “Lenders”) comprising Requisite Lenders (as defined in the Loan Agreement).
RECITALS
A. | Pursuant to the terms of that certain Second Amended and Restated Loan Agreement, dated as of July 2, 2019, by and among Borrower, Operating Lessee, Administrative Agent and the Lenders, as amended by Amendment No. 1 to Second Amended and Restated Loan Agreement and Modification to Loan Documents, dated as of June 30, 2020, by and among Borrower, Operating Lessee, Administrative Agent and the Lenders, as further amended by Amendment No. 2 to Second Amended and Restated Loan Agreement and Modification to Guaranty, dated as of May 7, 2021, by and among Borrower, Operating Lessee, Administrative Agent and the Lenders (the “Existing Loan Agreement”, the Existing Loan Agreement, as amended by this Agreement and as the same may be further amended, restated, supplemented or otherwise modified from time to time, collectively, the “Loan Agreement”) and other Loan Documents (as defined in the Loan Agreement), Lenders made a loan to Borrower in the amount of up to Eight Hundred Eighty Million Dollars ($880,000,000) (the “Loan”), which Loan bears interest and is permitted to incur fees, commissions or other amounts, based on the LIBO Rate in accordance with the terms of the Loan Agreement or the other Loan Documents. Each capitalized term used and not otherwise defined herein shall have the meaning given to such term in the Loan Agreement. |
B. | On account of the LIBO Rate being phased out as a benchmark index for usage in commercial real estate loans, Borrower, Operating Lessee, Administrative Agent and Requisite Lenders have elected to amend certain terms and provisions of the Existing Loan Agreement relating to the usage of the LIBO Rate as a benchmark for the Loan. |
NOW THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Requisite Lenders, Operating Lessee, Borrower and Administrative Agent hereby agree as follows:
1. | AMENDMENT. |
1.1 | BENCHMARK REPLACEMENT. The Existing Loan Agreement and each other applicable Loan Document are each hereby amended and modified to give |
effect to the provisions set forth on Exhibit A hereto, mutatis mutandis, as of the date that all conditions described in Section 2 below are satisfied. |
1.2 | DEFINED TERMS. Section 1.1 of the Existing Loan Agreement is hereby amended to amend and restate, or to insert as new terms, the following definitions: |
“Affected Financial Institution” – means any: (a) EEA Financial Institution; or (b) UK Financial Institution.
“Bail-In Action” – means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial institution.
“Bail-In Legislation” – means: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Counsel of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule; and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable to the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“EEA Financial Institution” – means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority; (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition; (c) an office of an institution described in clause (a) of this definition; or (d) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses(a) or (b) of this definition and is subject to consolidated supervision with its parent.
“Erroneous Payment” – has the meaning given to such term in Section 12.17(a).
“Erroneous Payment Deficiency Assignment” – has the meaning given to such term in Section 12.17(d).
“Erroneous Payment Impacted Class” – has the meaning given to such term in Section 12.17(d).
“Erroneous Payment Return Deficiency” – has the meaning given to such term in Section 12.17(d).
“Payment Recipient” – has the meaning given to such term in Section 12.17(a).
“Resolution Authority” – means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Secured Party” – means, individually and collectively, (a) Administrative Agent, (b) each Lender, (c) each counterparty to any Secured Interest Rate Protection Agreement, (d) the beneficiaries of each indemnification obligation undertaken by any Borrower or any Loan Party under any Loan Document, and (e) the permitted successors and assigns of each of the foregoing; all of the foregoing, respectively, as applicable at any time and as the context may suggest, permit or require.
“UK Financial Institution” – means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, that includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” – means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Write-Down and Conversion Powers” – means: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are descried in the EU Bail-In Legislation Schedule; and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.3 | SECTION 2.10; OPTION TO EXTEND. The penultimate sentence in Section 2.10(h) of the Existing Loan Agreement is hereby amended and restated in its entirety to read as follows: “The valuation date of such updated Appraisal shall be within one hundred eighty (180) days of the then applicable Maturity Date.” |
1.4 | SECTION 6.32; EEA FINANCIAL INSTITUTIONS. Section 6.32 of the Existing Loan Agreement is hereby amended such that each use of the term “EEA Financial Institution” is hereby replaced with the term “Affected Financial Institution”. |
1.5 | SECTION 9.33(b); DSCR AND DEBT YIELD REPORTING; CASH SWEEP. The last sentence of Section 9.33(b) of the Existing Loan Agreement (which, for reference, begins with “Following the twelve (12) month anniversary of the Cash Flow Sweep Release Event….”) is hereby amended and restated in its entirety to read as follows: |
“If Borrower exercises the First Option to Extend (and satisfies all extension conditions required in connection therewith), on the Original Maturity Date, Administrative Agent shall disburse the entire remaining amount of Minimum Retained Swept Funds to Borrower and Operating Lessee, or, at the election of Borrower or Operating Lessee, to be applied against the outstanding principal balance of the Loan, it being agreed that, there shall be no prepayment fee or penalty (including, without limitation, the Spread Maintenance Fee) in connection therewith.”
1.6 | SECTION 13.27; ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF AFFECTED FINANCIAL INSTITUTIONS. Section 13.27 of the Existing Loan Agreement is hereby amended such that each use of the term “EEA Financial Institution” is hereby replaced with the term “Affected Financial Institution”. |
1.7 | SECTION 12.17; ERRONEOUS PAYMENTS. The following is hereby inserted into the Existing Loan Agreement as a new Section 12.17: |
“12.17ERRONEOUS PAYMENTS.
2. | CONDITIONS TO EFFECTIVENESS. This Agreement shall become effective only upon the satisfaction of the following conditions precedent: |
3. | REPRESENTATIONS AND WARRANTIES. Each of Borrower and Operating Lessee represents and warrants to Administrative Agent and Lenders as of the date hereof and continuing thereafter that: |
3.1 | FORMATION AND ORGANIZATIONAL DOCUMENTS. Borrower and Operating Lessee have delivered to Administrative Agent all formation and organizational documents of Borrower, Operating Lessee and Ryman Guarantor, and all constituent entities required to authorize the transactions contemplated by this Agreement, the other Loan Documents and Other Related Documents, and all such formation and organizational documents remain in full force and effect and have not been amended or modified since they were delivered to Administrative Agent in connection with the preparation of this Agreement. |
3.2 | FULL FORCE AND EFFECT. The Loan Agreement, each Note and the other Loan Documents, in each case, as amended hereby, are valid and binding obligations of Borrower and Operating Lessee. All necessary limited liability company action to authorize the execution and delivery of this Agreement has |
been taken by Borrower and Operating Lessee (or their constituent entities, as applicable). |
3.3 | NO DEFAULT. To Borrower’s knowledge, there exists no Default or Potential Default, and all representations and warranties of the Borrower, Operating Lessee and each other Loan Party contained in Article VI of Loan Agreement or any other Loan Document, are true and correct in all material respects (except to the extent qualified by materiality in the Loan Documents, in which case, such representation and/or warranty shall be true and correct in all respects) on and as of the date hereof, except to the extent that such representations and warranties specifically refer or relate to an earlier date, in which case they shall be true and correct as of such earlier date. |
3.4 | TITLE TO THE PROPERTY. Since the recordation date of the Security Instrument, other than Permitted Liens, the Property has not been further encumbered, including, without limitation, by entering into any deed of trust, deed to secure debt or mortgage, ground lease, and/or any option to purchase or right of first refusal with respect to the Property, and this Agreement will not cause intervening liens to become prior to the lien of the Security Instrument. |
3.5 | REPRESENTATION BY INDEPENDENT COUNSEL. Borrower: (i) has been represented by independent legal counsel of its choice (or has had the opportunity to consult with independent legal counsel of its choice) in connection with this Agreement; (ii) has reviewed this Agreement and understands the agreements contained herein and their impact on the terms of the Loan Agreement and each other Loan Document and Borrower’s rights and obligations thereunder; and (iii) has knowingly and voluntarily agreed to execute and deliver this Agreement without duress. |
4. | REAFFIRMATION. By signing this Agreement, each Loan Party herby confirms that this Agreement shall not effect a novation of any of the obligations of the Loan Parties under the Existing Loan Agreement, any other Loan Document or any Other Related Document, which obligations shall continue in full force and effect as set forth in the Loan Agreement and such other Loan Documents. Additionally, by signing this Agreement, each Guarantor hereby confirms that this Agreement shall not effect a novation of any of the obligations of such Guarantor under its Guaranty, the Hazardous Materials Indemnity, any other Loan Document or any Other Related Document to which such Guarantor is a party (collectively, the “Guarantor Documents”), which obligations continue in full force and effect, and the Guarantor Documents are hereby reaffirmed, ratified and confirmed. Each Loan Party hereby ratifies and confirms that all Liens granted, conveyed, or assigned to Administrative Agent by such Person pursuant to any Loan Document to which it is a party remain in full force and effect, are not released or reduced, and continue to secure full payment and performance of the Obligations as increased hereby. |
5. | WAIVERS. In further consideration of Administrative Agent and Lenders entering into this Agreement, Borrower waives, to the extent permitted by applicable law, with respect |
to the Loan, any and all rights to which Borrower is or may be entitled pursuant to any anti-deficiency or similar laws that limit, qualify or reduce Borrower’s obligations under the Loan Documents. |
6. | NON-IMPAIRMENT. Except as expressly provided herein, nothing in this Agreement shall alter or affect any provision, condition, or covenant contained in any of the Loan Documents or affect or impair any rights, powers, or remedies of Administrative Agent or Lenders, it being the intent of the parties hereto that the provisions of the Loan Documents shall continue in full force and effect except as expressly modified hereby. Neither this Agreement nor anything contained herein shall be construed as a substitution or novation of Borrower’s indebtedness under the terms of the Loan Documents. |
7. | MISCELLANEOUS PROVISIONS. |
7.1 | No Waiver. No previous waiver and no failure or delay by Administrative Agent or any Lender in acting with respect to the terms of the Loan Documents shall constitute a waiver of any breach, default, or failure of condition under the Loan Documents. A waiver of any term of the Loan Documents must be made in writing and shall be limited to the express written terms of such waiver. |
7.2 | Severability. If any provision or obligation under this Agreement and the other Loan Documents shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed severed from the Loan Documents and the validity, legality and enforceability of the remaining provisions or obligations shall remain in full force as though the invalid, illegal, or unenforceable provision had never been a part of the Loan Documents, provided, however, that if the rate of interest or any other amount payable under the Note or this Agreement or any other Loan Document, or the right of collectability therefor, are declared to be or become invalid, illegal or unenforceable, Lenders’ obligations to make advances under the Loan Documents shall not be enforceable by Borrower. |
7.3 | Time. Time is of the essence of each and every term herein. |
7.4 | Governing Law and Consent to Jurisdiction. Section 13.23 of the Loan Agreement is incorporated herein by this reference. |
7.5 | Further Assurances. Borrower and each other Loan Party each agrees to execute such other documents, instruments and agreements and take such further actions reasonably requested by Administrative Agent to effectuate the provisions of this Agreement. |
7.6 | Headings. All article, section or other headings appearing in this Agreement and any of the other Loan Documents are for convenience of reference only and shall be disregarded in construing this Agreement and any of the other Loan Documents. |
7.7 | Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of any executed counterpart of a signature page of this Agreement by facsimile or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof. |
7.8 | Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which when taken together shall constitute one agreement. The words “execution,” signed,” “signature,” and words of like import in this Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. Each party hereto hereby waives any defenses to the enforcement of the terms of this Agreement based on the form of its signature, and hereby agrees that such electronically transmitted or signed signatures shall be conclusive proof, admissible in judicial proceedings, of such party’s execution of this Agreement. Even though the parties agree that electronic signatures are legally enforceable and intended to be effective for all purposes, the signing parties agree if requested by Administrative Agent in its sole discretion to promptly deliver to Administrative Agent the requested original document bearing an original manual signature, to the extent required or advisable to be delivered in connection with any program made available to Administrative Agent or any of its affiliates by the Federal Reserve, U.S. Treasury Department or any other federal or state regulatory body. |
7.9 | Defined Terms. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings attributed to such terms in the Loan Agreement. |
7.10 | Rules of Construction. The word “Borrower” as used herein shall include both the named Borrower and any other person at any time assuming or otherwise becoming primarily liable for all or any part of the obligations of the named Borrower under the Note and the other Loan Documents. The term “person” as |
used herein shall include any individual, company, trust or other legal entity of any kind whatsoever. If this Agreement is executed by more than one person, the term “Borrower” shall include all such persons. The word “Administrative Agent” as used herein shall include Administrative Agent, its successors, assigns and affiliates. |
7.11 | Notices. All notices relating to this Agreement shall be delivered in the manner and subject to the provisions set forth in the Loan Agreement. |
7.12 | Use of Singular and Plural; Gender. When the identity of the parties or other circumstances make it appropriate, the singular number includes the plural, and the masculine gender includes the feminine and/or neuter. |
7.13 | Exhibits, Schedules and Riders. All exhibits, schedules, riders and other items attached hereto are incorporated into this Agreement by such attachment for all purposes. |
7.14 | Inconsistencies. In the event of any inconsistencies between the terms of this Agreement and the terms of any of the other Loan Documents, the terms of this Agreement shall prevail. |
7.15 | Binding Effect, Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the parties to the Loan Agreement and each other applicable Loan Document and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns, and no other party shall derive any rights or benefits herefrom. |
7.16 | Reference to and Effect on the Loan Agreement and the Other Loan Documents. On and after the date hereof, each reference in any Loan Document to such Loan Document, “hereunder”, “herein” or words of like import referring to such Loan Document, and each reference in the other Loan Documents to another Loan Document, “thereunder”, “thereof” or words of like import referring to such Loan Document shall mean and be a reference to such Loan Document as amended by this Agreement. |
7.17 | Integration; Interpretation. This Agreement, the Loan Agreement (as amended hereby), and the other Loan Documents contain or expressly incorporate herein by reference the entire agreement of the parties with respect to the matters contemplated herein and therein and supersede all prior negotiations or agreements, written or oral. |
[Signature Pages Appear on Following Pages]
IN WITNESS WHEREOF, Requisite Lenders, Borrower and Administrative Agent have caused this Agreement to be duly executed and delivered as of the date first above written.
“ADMINISTRATIVE AGENT”
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and on behalf of Requisite Lenders
By:/s/ Christian Roeder
Name:Christian Roeder
Title:Vice President
“BORROWER”
AURORA CONVENTION CENTER HOTEL, LLC,
a Delaware limited liability company
By:/s/ Scott J. Lynn
Name:Scott J. Lynn
Title:Vice President and Secretary
“OPERATING LESSEE”
AURORA CONVENTION CENTER HOTEL LESSEE, LLC,
a Delaware limited liability company
By:/s/ Scott J. Lynn
Name:Scott J. Lynn
Title:Vice President and Secretary
Agreed and consented to:
“GUARANTOR” and “INDEMNITOR”
RHP HOTEL PROPERTIES, LP,
a Delaware limited partnership
By:RHP Partner, LLC,
a Delaware limited liability company,
as sole general partner
By:/s/ Scott J. Lynn
Name:Scott J. Lynn
Title:Vice President and Secretary
RYMAN HOSPITALITY PROPERTIES, INC.,
a Delaware corporation
By:/s/ Scott J. Lynn
Name:Scott J. Lynn
Title:Executive Vice President, General Counsel and Secretary
EXHIBIT A
Notwithstanding anything to the contrary contained in the Existing Loan Agreement or in any other Loan Document, the Existing Loan Agreement and each other applicable Loan Document are each hereby amended and modified (to the extent applicable) to give effect to the provisions set forth on this Exhibit A.
Article 1. | Definitions, Etc. |
“Adjusted Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to the greater of (a) the sum of (i) SOFR for the day (such day, a “SOFR Determination Day”) that is five (5) U.S. Government Securities Business Days prior to (A) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (B) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website; provided that if by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Day, SOFR in respect of such SOFR Determination Day has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to Adjusted Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Day will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided further that SOFR as determined pursuant to this proviso shall be utilized for purposes of calculation of Adjusted Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days and (ii) the SOFR Adjustment and (b) the Floor. Any change in Adjusted Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to the Loan Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “interest period” (or a similar or analogous period) pursuant to Section 3.04(c)(iv) below.
“Benchmark” means, initially, Adjusted Daily Simple SOFR; provided that if a Benchmark Transition Event has occurred with respect to the Adjusted Daily Simple SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.04(c)(i) below.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by Administrative Agent and Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of the Loan Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent and Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(a)in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b)in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to
be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor (if applicable) of such Benchmark (or such component thereof);
(b)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors (if applicable) of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or
publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the ninetieth (90th) day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than ninety (90) days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.04(c) below, and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.04(c) below.
“Business Day” means any day that is not a Saturday, Sunday or other day on which the Federal Reserve Bank of New York is closed.
“Conforming Changes” means, with respect to either the use or administration of Adjusted Daily Simple SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “interest period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 3.05 below and other technical, administrative or operational matters) that Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of the Loan Agreement and the other Loan Documents).
“Effective Rate” has the meaning given to such term in Section 3.03(d) below.
“Floor” means a rate of interest equal to zero percent (0.00%).
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“LIBO Rate Related Definition” means any term defined in the Existing Loan Agreement or any other Loan Document (or any partial definition thereof) as in effect immediately prior to giving effect to the provisions of this Agreement on the Rate Transition Date, however phrased, primarily relating to the determination, administration or calculation of the LIBO Rate, including by way of example any instances of the LIBO Rate and other applicable terms. The term “LIBO Rate Related Definition” does not include any term such as “Base Rate” or other analogous or similar term generally indicating use of a benchmark rate other than, immediately prior to giving effect to the provisions of Article 3 of this Exhibit A, the LIBO Rate, even if such term, immediately prior to giving effect to the provisions of Article 3 of this Exhibit A, would have included a component based on the LIBO Rate.
“Modification Effective Date” means May [__], 2023.
“Overnight Rate” means, for any day, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation.
“Payment Date” has the meaning given to such term in Section 3.03 below.
“Rate Transition Date” means June 1, 2023.
“Relevant Governmental Body” means the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York or any successor thereto.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Adjustment” means a percentage equal to one tenth percent (0.10%) per annum.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Day” has the meaning specified in the definition of “Adjusted Daily Simple SOFR”.
“SOFR Rate Day” has the meaning specified in the definition of “Adjusted Daily Simple SOFR”.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
Article 2. | Discontinuance of the LIBO Rate. |
Article 3. | New Adjusted Daily Simple SOFR Benchmark. |
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining the Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum
received or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender or other Recipient, Borrower shall promptly pay to any such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
Article 4. | Delayed Transition for Prior Interest Period. |
The provisions in the other Articles of this Exhibit A shall not apply with respect to any: (a) period or determination of the LIBO Rate that: (i) is or was set prior to the Rate Transition Date; and (ii) is held constant for a specifically designated period and is not reset on a daily or substantially daily basis (disregarding day count, weekend or holiday conventions); or (b) retroactive margin, yield, fee or commission increases available to Administrative Agent or the Lenders as a result of any inaccuracy in any financial statement or compliance certificate that, if corrected, would have led to the application of a higher interest margin or yield with respect to the Loan accruing interest based on the LIBO Rate or any higher fee or commission for any applicable period, and in each case, the LIBO Rate Related Definitions and provisions with respect thereto (as in effect immediately prior to giving effect to the provisions of this Agreement on the Rate Transition Date) shall continue in effect solely for such purpose; provided that, with respect to any such LIBO Rate applicable to the Loan described in clause (a) of this Article 4, such LIBO Rate shall only continue in effect in accordance with its terms until the then-current “interest period” (or any similar or analogous definition) (as defined without giving effect to this Agreement) therefor has concluded.
Article 5. | Voluntary Prepayment. |
Notwithstanding any provision of the Loan Agreement to the contrary, each notice of voluntary prepayment shall be given to and received by Administrate Agent not later than 1:00 P.M. on the date three (3) U.S. Government Securities Business Days’ prior the date of repayment.