NY Gen Oblig L § 18-400 (2021)
2021 New York Laws GOB - General Obligations Article 18-C - Libor Discontinuance 18-400 - Definitions.

§  18-400.  Definitions.  As  used in this article the following terms shall have the following meanings:   1. "LIBOR" shall mean, for purposes of the application of this article to any particular contract, security or instrument,  U.S.  dollar  LIBOR (formerly known as the London interbank offered rate) as administered by ICE  Benchmark  Administration  Limited (or any predecessor or successor thereof), or any tenor thereof, as applicable, that is  used  in  making any calculation or determination thereunder.   2.  "LIBOR  discontinuance  event" shall mean the earliest to occur of any of the following:   a. a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently  or  indefinitely,  provided that, at the time of the statement or publication, there is no successor administrator that will continue to provide LIBOR;   b.  a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR,  the  United  States  Federal Reserve  System,  an  insolvency  official  with  jurisdiction  over the administrator for LIBOR, a resolution authority with  jurisdiction  over the  administrator  for  LIBOR  or  a  court  or  an entity with similar insolvency or resolution authority over  the  administrator  for  LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely, provided that, at the time of the  statement  or publication, there is no successor administrator that will continue to provide LIBOR; or   c. a public statement or publication of information by the  regulatory supervisor  for  the  administrator of LIBOR announcing that LIBOR is no longer representative. For purposes of this subdivision  two,  a  public statement  or publication of information that affects one or more tenors of LIBOR shall not constitute a LIBOR discontinuance event with  respect to  any  contract, security or instrument that (i) provides for only one tenor of LIBOR,  if  such  contract,  security  or  instrument  requires interpolation  and such tenor can be interpolated from LIBOR tenors that are not so affected, or (ii) permits a party to choose  from  more  than one  tenor of LIBOR and any of such tenors (A) is not so affected or (B) if such contract, security or instrument requires interpolation, can  be interpolated from LIBOR tenors that are not so affected.   3. "LIBOR replacement date" shall mean:   a.  in the case of a LIBOR discontinuance event described in paragraph a or b of subdivision two of this section, 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  LIBOR  permanently  or indefinitely ceases to provide LIBOR; and   b.  in the case of a LIBOR discontinuance event described in paragraph c of subdivision two of this section, the date of the  public  statement or  publication  of information referenced therein. For purposes of this subdivision, a date that affects one or more tenors of LIBOR  shall  not constitute  a  LIBOR  replacement  date  with  respect  to any contract, security or instrument that (i) provides for only one tenor of LIBOR, if such contract, security or instrument requires  interpolation  and  such tenor can be interpolated from LIBOR tenors that are not so affected, or (ii) permits a party to choose from more than one tenor of LIBOR and any of  such tenors (A) is not so affected or (B) if such contract, security or instrument requires interpolation, can  be  interpolated  from  LIBOR tenors that are not so affected.   4.  "Fallback  provisions" shall mean terms in a contract, security or instrument that set forth a methodology or procedure for  determining  a benchmark replacement, including any terms relating to the date on which  the benchmark replacement becomes effective, without regard to whether a benchmark   replacement  can  be  determined  in  accordance  with  such methodology or procedure.   5. "Benchmark" shall mean an index of interest rates or dividend rates that is used, in whole or in part, as the basis of or as a reference for calculating  or  determining any valuation, payment or other measurement under or in respect of a contract, security or instrument.   6. "Benchmark replacement" shall mean a benchmark, or an interest rate or dividend rate (which may or may not be based in whole or in part on a prior setting of LIBOR), to  replace  LIBOR  or  any  interest  rate  or dividend  rate  based  on  LIBOR,  whether  on a temporary, permanent or indefinite basis, under  or  in  respect  of  a  contract,  security  or instrument.   7. "Recommended benchmark replacement" shall mean, with respect to any particular  type  of  contract,  security  or  instrument,  a  benchmark replacement based on SOFR, which shall include  any  recommended  spread adjustment  and any benchmark replacement conforming changes, that shall have been selected or recommended by a relevant recommending  body  with respect to such type of contract, security or instrument.   8.  "Recommended spread adjustment" shall mean a spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that shall have  been  selected or  recommended  by  a  relevant  recommending  body  for  a recommended benchmark replacement for a particular type  of  contract,  security  or instrument  and  for a particular term to account for the effects of the transition or change from LIBOR to a recommended benchmark replacement.   9. "Benchmark replacement conforming changes" shall mean, with respect to  any  type  of  contract,  security  or  instrument,  any  technical, administrative or operational changes, alterations or modifications that are  associated  with  and  reasonably  necessary  to the use, adoption, calculation or implementation of a recommended benchmark replacement and that:   a. have been selected or recommended by a relevant recommending  body; and   b.  if,  in  the  reasonable  judgment  of the calculating person, the benchmark  replacement  conforming  changes  selected   or   recommended pursuant  to  paragraph  a  of  this  subdivision  do  not apply to such contract,  security  or  instrument  or  are  insufficient   to   permit administration and calculation of the recommended benchmark replacement, then  benchmark  replacement conforming changes shall include such other changes, alterations or modifications that, in the  reasonable  judgment of the calculating person:  (i)  are  necessary  to  permit  administration and calculation of the recommended benchmark replacement under or in respect of such  contract, security  or  instrument in a manner consistent with market practice for substantially similar contracts, securities or instruments and,  to  the extent  practicable,  the  manner  in  which  such contract, security or instrument was administered immediately prior to the  LIBOR  replacement date; and  (ii)  would  not result in a disposition of such contract, security or instrument for U.S. federal income tax purposes.   10. "Determining person" shall mean, with  respect  to  any  contract, security or instrument, in the following order of priority:   a. any person specified as a "determining person"; or   b. any person with the authority, right or obligation to:  (i)  determine  the benchmark replacement that will take effect on the LIBOR replacement date,  (ii) calculate or determine a valuation, payment or other  measurement based on a benchmark, or  (iii) notify other persons of the occurrence of a LIBOR discontinuance event, a LIBOR replacement date or a benchmark replacement.   11. "Relevant recommending body" shall mean the Federal Reserve Board, the Federal Reserve Bank of New York, or the Alternative Reference Rates Committee, or any successor to any of them.   12.  "SOFR" shall mean, with respect to any day, the secured overnight financing rate published for such day by the Federal Reserve Bank of New York,  as  the  administrator  of  the   benchmark   (or   a   successor administrator), on the Federal Reserve Bank of New York's website.   13.  "Calculating  person"  shall  mean, with respect to any contract, security or instrument, any person (which may be the determining person) responsible for calculating or determining  any  valuation,  payment  or other measurement based on a benchmark.   14.   "Contract,  security,  or  instrument"  shall  include,  without limitation, any contract, agreement, mortgage,  deed  of  trust,  lease, security  (whether  representing  debt  or  equity,  and  including  any interest  in  a  corporation,  a  partnership  or  a  limited  liability company), instrument, or other obligation.