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HomeMy WebLinkAbout2023-04 Amending City's Capital Improvement Refunding Revenue Note, Series 2009 NoteRESOLUTION NO. 2023-04 AMENDINGA RESOLUTION OF THE CITY OF OCOEE, FLORIDA, r SUPPLEMENTING RESOLUTIONNO. 119 11 ADOPTED ON : 10AUTHORIZING AMENDMENTS• THE CITYS CAPITAL IMPROVEMENTrNOTE,il• TO MODIFY THE BENCHMARK VARIABLE RATE INDEX WITH • • • :• • • • ! ' ! ' WHEREAS, the City Commission (the "Commission") of the City of Ocoee, Florida (the "Issuer") has, pursuant to Resolution No. 2009-005 adopted on September 15, 2009 (the "Original Resolution" and, as supplemented and amended hereby, the "Note Resolution"), previously issued its $5,000,000 City of Ocoee, Florida Capital Improvement Refunding Revenue Note, Series 2009 (the "Series 2009 Note") for the purpose of refunding the Issuer's outstanding Capital Improvement Revenue Note, Series 2006; and WHEREAS, the interest on the Series 2009 Note bears interest at a variable rate based on a formula utilizing the London Interbank Offered Rate, commonly referred to as "LIBOR," as a benchmark index; and WHEREAS, LIBOR is expected to cease certain tenor settings on Tune 30, 2023, and various substitution rates and equivalency factors have now been generally agreed to in the market; and WHEREAS, the Issuer and the holder of the Series 2009 Note (the "Lender") desire to make certain amendments to the Series 2009 Note and the Original Resolution to substitute the LIBOR benchmark index pursuant to which the Series 2009 Note bears interest to an appropriate substitution index, whether now existing or subsequently developed, that is deemed approximately equivalent to LIBOR and other related adjustments and amendments as may be necessary and appropriate for the implementation and administration of the replacement index, and an effective date of the substitution rate (which could become immediately effective upon determination that LIBOR as a reference rate is no longer reliable or unascertainable or such other conditions set forth in the Consolidated Amendment to Note Documents attached hereto as Exhibit A (the "Amendment")); and WHEREAS, in order for the Issuer and the Lender to amend the Series 2009 Note and Original Resolution, it is now necessary for the Issuer to approve the Amendment and provide authorization and delegate authority for its execution; and NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Ocoee, Florida, that: SECTION 1. Authority y for this Resolution. This resolution is adopted pursuant to the provisions of the Charter of the City of Ocoee, Florida, Chapter 166, Part IL Florida Statutes, as amended, the Issuer's home rule powers, and other applicable provisions of law. SECTION 2. Definitions. All capitalized undefined terms used herein shall have the meanings ascribed thereto in the Series 2009 Note, the Original Resolution or in the recitals above. SECTION 3. Authorization and Approval of Amendment; Authorization of Execution and Delivery. The Amendment attached hereto as Exhibit A is hereby authorized and approved. The Amendment is hereby incorporated herein by reference and made a part of the Note Resolution and the Series 2009 Note. The Mayor, or the Mayor's designee, and the City Manager, or the City Manager's designee, are each hereby authorized to execute and deliver the Amendment. The City Manager is additionally authorized to take such further action as shall be required for carrying out the purposes of this resolution. SECTION 4. Prior Resolutions. All prior resolutions of the Issuer inconsistent with the provisions of the Original Resolution are hereby amended and supplemented to conform with the provisions herein contained and, except as otherwise amended and supplemented hereby, the Original Resolution shall remain in full force and effect. SECTION 5. No Personal Liability. Neither the members of the Commission nor any person executing any document on behalf of the Issuer in connection with the Amendment shall be personally liable with respect to the Series 2009 Note or be subject to any personal liability or accountability by reason of the execution and delivery thereof. SECTION 6. General Authority. The Mayor, the City Manager, the Finance Director, the City Clerk, the City Attorney and any other proper officials of the Issuer are hereby authorized to do all acts and things required of them by this resolution, the Original Resolution, the Series 2009 Note, or any other agreement or contract relating to the Series 2009 Note, or that may otherwise be desirable or consistent with accomplishing the full, punctual and complete performance of all the terms, covenants and agreements contained in any of the foregoing and each member, employee, attorney and officer of the Issuer is hereby authorized and directed to execute and deliver any and all papers and instruments and to cause to be done any and all acts and things necessary or proper for carrying out the amendments contemplated thereby. SECTION 7. Severability and Invalid Provisions. If any one or more of the covenants, agreements or provisions herein contained shall be held contrary to any express provision of law or contrary to the policy of express law, but not expressly prohibited or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants,, agreements or provisions and shall in no way affect the validity of the other provisions hereof or of the Amendment, the Note Resolution or the Series 2009 Note. 4 SECTION 8. No Third Party Beneficiaries. Except such other persons as may be expressly described in the Note Resolution or in the Series 2009 Note, nothing in the Note Resolution or ti- the Series 2009 Note, expressed or implied, is intended or shall be construed to confer upon any person, other than the Issuer and the Lender, any right, remedy or claim, legal or equitable, under and by reason of the Note Resolution or of the Series 2009 Note, or any provisions thereof, all provisions thereof being intended to be and being for the sole and exclusive benefit of the Issuer and the Lender. SECTION 9. Effective Date. This Resolution shall become effective immediately upon its adoption as provided by law. PASSED AND ADOPTED this 21st day of March, 2023, at a regular meeting duly called and held. (SEAL) ATTEST: Melanie Sibbitt, City Clerk aw, IDA N y-na my MIS I MARCH, 2023. Z:rf T-UsTITT 1T1TSWWj71FVT'--Tn7CTrT-'*7' *COEE, FLORIDA Rusty Johns , M y r COMMISSION AT A MEETING HELD ON MARCH 21,2023 UNDER AGENDA ITEM NO. 5- 3 EXHIBIT A CONSOLIDATED AMENDMENT TO NOTE DOCUMENTS WOM 0 1 INI I a 0=1 OR I Issuer: Lender: Note Caption: Date of Note: Original Principal Amount: Date of Amendment: TRUIST COMMERCIAL EQUITY, INC., successor to STI INSTITUTIONAL & GOVERNMENT, INC. City of Ocoee, Florida Capital Improvement Refunding Revenue Note, Series 2009 October 1, 2009 $5,000,000 March 23, 2023 317-MGK440111101 A. The Issuer executed and delivered to the Lender the note described above (such note being referred to herein as the "Note") and the Lender is the current holder of such Note. B. The Note was issued pursuant to the terms of Resolution No. 2009-005 adopted by the City Commission of the City of Ocoee, Florida (the "City Commission") on September 15, 2009, as amended and supplemented by Resolution No. 2023-_ adopted by the City Commission on March 21, 2023 (as amended, modified or restated, the "Resolution" and, collectively with the Note and this Amendment (as hereinafter defined), the "Note Documents"). C. The interest rate applicable to the Note is based upon LIBOR and, in contemplation of the cessation of LIBOR on June 30, 2023, the Issuer and the Lender desire to amend the Note and the Resolution to provide for, in the manner as described herein, the replacement of LIBOR upon its cessation. NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged and intending to be legally bound, the parties hereto are entering into this Consolidated Amendment to Note Documents (this "Amendment"), and hereby covenant and agree as follows: 1. Defined Terms. Any capitalized terms used in this Amendment or the Background provisions hereof which are not so defined, but which are defined in a Note Document, shall have the meanings ascribed to those terms in such Note Document, as applicable. 2. LIBOR Fallback Provisions. (a) Notwithstanding anything to the contrary set forth in the Note or any other Note Document, the Lender and the Issuer agree that the Note and the other Note Documents are hereby amended to include the provisions attached hereto as Exhibit A, and such provisions shall govern as to all matters related to the replacement of LIBOR. (b) The Lender and the Issuer intend that any current fallback provision addressing the replacement of LIBOR, including but not limited to the events or conditions under which LIBOR will be replaced and/or the manner, methodology, or mechanism for the replacement of LIBOR with a new index or benchmark upon the unavailability of LIBOR (whether on a temporary or a permanent basis), shall be deemed replaced with the provisions attached hereto as Exhibit A. (c) The parties hereto intend for this Amendment to constitute a covered modification within the meaning of Treasury Department and IRS Revenue Procedure 2020-44 dated October 9, 2020, as further amended by the issuance of the final regulations related thereto effective March 7, 2022. 3. Continuing Effect. Except as expressly modified hereby, all of the terms, covenants, and conditions of the Note and the other Note Documents shall remain in full force and effect. This Amendment is given as a modification of the current fallback provision addressing the replacement of LIBOR, and is not given in substitution therefor or extinguishment thereof and is not intended to be a novation. 4. Attachment to Note and Resolution. This Amendment shall be and remain attached to the Note and the Resolution and shall be an integral part thereof. S. Governing L . This Amendment shall be governed by and construed in accordance with the domestic internal laws (but not the law of conflict of laws) of the State of Florida. 6. Miscellaneous. Wherever possible, the provisions of this Amendment shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under such law, such provision shall be ineffective only to the extent of any such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same instrument. The headings in this Amendment are included for convenience only and shall neither affect the construction or interpretation of any provision in this Amendment nor affect any of the rights or obligations of the parties to this Amendment. The Issuer agrees to pay all reasonable costs and expenses in connection with the preparation, execution and delivery of the documents executed in connection with this Amendment, including without limitation, the reasonable fees and out-of-pocket expenses of Lender's counsel, bond counsel and Issuer's counsel. ACKNOWLEDGESISSUER I 1 HEREAFTER;APPLY FOR A REPLACEMENT INDEX FOR USD LIBOR NOW OR AT ANY TIME ' RATE FOLLOWING r LIBOR THROUGH ANY REQUESTED AMENDMENT MAY BE LOWER OR HIGHER THAN THE INTERE ST RATE FOLLOWING RE PLACEMENT OF USD LIBOR AT CESSATION1 BY THIS AMENDMENT;AND ISSUER HAS KNOWINGLY AND VOLUNTARILY ENTERED INTO THIS AMENDMENT. IN WITNESS WHEREOF, the pat -ties hereto have executed and delivered this Amendment as of the Date of Amendment referenced above. CITY OF OCOEE, FLORIDA, as Issuer Name: Rusty Jo*n Title: Mayor TRUIST COMMERCIAL EQUITY, INC., successor to STI INSTITUTIONAL & GOVERNMENT, INC., as Lender By:_ Name: Title: [Signature page to Consolidated Amendment to Note and Resolution] Exhibit A The following provisions are hereby made a part of the Note and the Resolution. 1.1 Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Note Document, if a Benchmark Transition Event or an Early Opt -in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then -current Benchmark, then, (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of "Benchmark Replacement" for such Benchmark Replacement Date, in connection with a Benchmark Transition Event, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Note Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, the Note or any other Note Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of "Benchmark Replacement" for such Benchmark Replacement Date, or in connection with an Early Opt -in Election, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Note Document in respect of any Benchmark setting at or after 5:00 p.m. (Charlotte, North Carolina) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to Issuer without any amendment to the Note or any other Note Document, or further action or consent of Issuer. For avoidance of doubt, upon the replacement of USD LIBOR, or any subsequent Benchmark, with a Benchmark Replacement, the interest rate on the Note shall equal the then -current Benchmark- (with such Benchmark remaining subject to any applicable adjustment set forth in the Note Documents resulting from the tax-exempt status of the Note) plus the Margin, and fixed minimum rates, if any, shall continue to apply and any other references to LIBOR in the Note or other Note Documents, including in the definition of Taxable Rate (or similar term), shall equal the then -current Benchmark plus any applicable spread component or adjustment of the Taxable Rate (or similar term) that is applicable, as provided herein and in the Note or other Note Documents. 1.2 Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, Lender will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Note Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective upon written notice from Lender to Issuer of any such amendment. 13 Notices; Standards for Decisions and Determinations. Lender will promptly notify Issuer of (i) any occurrence of a Benchmark Transition Event or an Early Opt -in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark- pursuant to Section 1.4 below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Lender pursuant to this Section 1, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non- &W occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its sole discretion and without consent from Issuer. 1.4 Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Note Document, at any time (including in connection with the implementation of a Benchmark- Replacement), (i) if the then -current Benchmark is a term rate (including Term SOFR or USD LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Lender in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then Lender may modify the definition of "Interest Period" for any Benchmark settings at or after such time to remove such unavailable or non -representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then Lender may modify the definition of "Interest Period" for all Benchmark settings at or after such time to reinstate such previously removed tenor. 1.5 Benchmark Unavailability Period. Upon Issuer's receipt of notice of the commencement of a Benchmark Unavailability Period, the reference to "USD LIBOR" in the calculation of the applicable interest rate on the Note shall be deemed and interpreted to mean the "Standard Rate", and the Margin and fixed minimum rates, if any, shall continue to apply. During any Benchmark Unavailability Period or at any time that a tenor for the then- current Benchmark is not an Available Tenor, the component of Standard Rate based upon the then -current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Standard Rate. 1.6 Definitions. In addition to the terms defined in the Note Documents, the following definitions shall apply: "Available Tenor" means, as of any date of determination and with respect to the then - current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to the Note Documents 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" pursuant to Section 1.4 hereof. "Benchmark" means, initially, USD LIBOR; provided that if a Benchmark Transition Event or an Early Opt -in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to USD LIBOR 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 1.1 hereof. "Benchmark Replacement" means, for any Available Tenor, the first alternative set forth in the order below that can be determined by Lender for the applicable Benchmark Replacement Date: ME (1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment; (2) the sum of. (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment; (3) the sum of: (a) the alternate benchmark rate that has been selected by Lender as the replacement for the then -current Benchmark, for the applicable Corresponding Tenor 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 for the then -current Benchmark for U.S. dollar -denominated syndicated or bilateral credit facilities at such time and (b) the related Benchmark Replacement Adjustment provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by Lender in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of the Note and the other Note Documents. "Benchmark Replacement Adjustment" means, with respect to any replacement of the then -current Benchmark with an Unadjusted Benchmark, Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement: (1) for purposes of clauses (1) and (2) of the definition of "Benchmark, Replacement," the first alternative set forth in the order below that can be determined by Lender: (a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; (b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and (2) for purposes of clause (3) of the definition of "Benchmark Replacement," 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 Lender for the applicable Corresponding Tenor giving due consideration to (i) 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 A-3 Benchmark Replacement by the Relevant Goverm-nental Body on the applicable Benchmark Replacement Date or (ii) 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 Benchinark Replacement for U.S. dollar -denominated syndicated or bilateral credit facilities; p ovided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by Lender in its reasonable discretion. "Benchmark Replacement Conforming Changes" means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of "Standard Rate," the definition of "Business Day," the definition of "Interest Period," timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions and other technical, administrative or operational matters) that Lender decides may be appropriate to reflect the adoption and implementation of such Benchmark- Replacement and to permit the administration thereof by Lender in a manner substantially consistent with market practice (or, if Lender decides that adoption of any portion of such market practice is not administratively feasible or if Lender determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Lender decides is reasonably necessary in connection with the administration of the Note and the other Note Documents), provided however that such changes will not affect the rights and obligations of Issuer not assigned to Lender. "Benchmark Replacement Date" means the earliest to occur of the following events with respect to the then -current Benchmark,: (1) in the case of clause (1) or (2) of the definition of "Benchmark Transition Event," the later of (a) the date of the public statement or publication of information referenced therein and (b) 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); (2) in the case of clause (3) of the definition of "Benchmark Transition Event," the date of the public statement or publication of information referenced therein; or (3) in the case of an Early Opt -in Election, the sixth (6th) Business Day after the date notice of such Early Opt -in Election is provided to Issuer. For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and the "Benchmark Replacement Date" will be deemed to have occurred in the case of clause (1) or (2) 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: (1) 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 of such Benchmark (or such component thereof); (2) 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 Board of Governors of the Federal Reserve System, 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 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 (3) 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 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 Unavailability Period" means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) 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 Note Document in accordance with this Section I and (y) ending at the time that a Benchmark Replacement has replaced the then- current Benchmark for all purposes hereunder and under any Note Document in accordance with this Section 1. "Business Day" means a day other than a Saturday, Sunday, legal holiday or any other day when Truist is authorized or required by applicable law to be closed. M "Corresponding Tenor" with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor. "Daily Simple SOFR" means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Lender in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining "Daily Simple SOFR" for business loans; provided, that if Lender decides that any such convention is not administratively feasible for Lender, then Lender may establish another convention in its reasonable discretion. "Early Opt -in Election" means, if the then -current Benchmark is USD LIBOR, the occurrence of: a determination by Lender that at least five currently outstanding U.S. dollar- denominated syndicated or bilateral credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate, and (2) the election by Lender to trigger a fallback from USD LIBOR and the provision by Lender of written notice of such election to Issuer. "Federal Funds Rate" shall mean, for any day, the rate per annurn equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Tiuist. "Floor" means the Benchmark rate floor, if any, provided in the Note Documents initially (as of the issuance of the Note, the modification or amendment of the Note or otherwise) with respect to USD LIBOR. "Interest Period" if defined in a Note Document, has the meaning set forth in such Note Document and, if not defined in a Note Document, means the construct under the Note Documents that establishes the recurring determination date of the then -current Benchmark and the subsequent period of time during which the then -current Benchmark is fixed. "ISDA Definitions" means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto. "Margin" means the per annum credit spread component of the interest rate that is applicable to the Note on the date hereof. A-6 "Prime Rate" means the interest rate announced by Truist from time to time as its prime rate. Any change in the Prime Rate shall be effective as of the date such change is announced by Truist. "Reference Time" with respect to any setting of the then -current Benchmark means (1) if such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not USD LIBOR, the time determined by Lender in its reasonable discretion. "Relevant Governmental Body" means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto. "SOFR" means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator's Website on the immediately succeeding Business Day. "SOFR Administrator" means the Federal Reserve Bank of New York, (or a successor administrator of the secured overnight financing rate). "SOFR Administrator's Websitell means the website of the Federal Reserve Bank of New York, currently at http://www.newyorlcfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. "Standard Rate" means, for any day, the rate of interest per annum equal to the lesser of (i) the Federal Funds Rate plus 1.00% and (ii) the Prime Rate, provided that in no event will the Standard Rate ever be less than 0%. Each change in the Standard Rate shall be effective on the date any change in the Prime Rate is publicly announced as being effective, if applicable. "Term SOFR" means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward -looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body. "Truist" means Truist Bank, and its successors and assigns. "Unadjusted Benchmark Replacement" means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. "USD LIBOR" means the London interbank offered rate for U.S. dollars. 1.7 Notices and Disclosures. Lender hereby discloses and Issuer understands and agrees to the following with respect to USD LIBOR: (a) On March 5, 2021 the Financial Conduct Authority ("FCA"), the regulatory supervisor of USD LIBOR's administrator ("IBA"), announced in a public statement the future cessation of 1- month, 3-month, 6-month and 12- month USD LIBOR tenor settings on June 30, 2023. This announcement constituted a Benchmark Transition Event. M (b) Term SOFR has been endorsed by the Alternative Reference Rate Committee (the "ARRC"), the Relevant Governmental Body established by the Federal Reserve Board. (c) The ARRC has also endorsed the spread adjustments for the replacement of USD LIBOR as follows: USD LIBOR tenor being replaced spread aoiustment 1-Mont U SD LIBOR .11448% 3-Month USD LIBOR .26161% 6-Month USD LIBOR .42826% 1 -year USD LIBOR .71513% W.,