Government Securities. Notwithstanding anything to the contrary in the Indenture or this Note, if the Company or its designee determines on or prior to the relevant Reference Time (as defined below) that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions set forth below under “—Effect of Benchmark Transition Event” will thereafter apply to all determinations of the rate of interest payable on the Notes. For the avoidance of doubt, in accordance with the benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate for each Interest Period during the Floating Rate Period will be an annual rate equal to the sum of the Benchmark Replacement plus 2.347%. If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, or any successor source. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”), SOFRi for such day “i” shall be SOFR published in respect of the first preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s Website.
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Government Securities. Notwithstanding anything to clauses (1) and (2) of the contrary in the Indenture or this Notedefinition of “SOFR” above, if the Company or its designee (in consultation with the Company) determines on or prior to the relevant Reference Time (as defined below) Interest Determination Date that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions “Benchmark Transition Provisions” set forth below under “—Effect of Benchmark Transition Event” in Annex I to the Seventeenth Supplemental Indenture will thereafter apply to all determinations of the rate of interest payable on the NotesSecurities during the Floating Rate Period. For the avoidance of doubt, in In accordance with and subject to the benchmark replacement provisionsBenchmark Transition Provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the amount of interest that will be payable on the Securities during each Floating Rate Interest Period will be determined by reference to a rate per annum equal to the Benchmark Replacement plus the Margin, provided that, if the Company or its designee (in consultation with the Company) are unable to or do not timely determine a Benchmark Replacement in accordance with the Benchmark Transition Provisions or if there is a Derecognition Risk, the interest rate for each the related Floating Rate Interest Period will be equal to the interest rate in effect for the immediately preceding Floating Rate Interest Period, or in the case of the Interest Determination Date prior to the first Floating Rate Period Interest Payment Date, the Fixed Interest Rate. By its acquisition of the Securities, each Holder and Beneficial Owner (i) will acknowledge, accept, consent and agree to be bound by the Company’s or its designee’s determination of a Benchmark Transition Event, a Benchmark Replacement Date, the Benchmark Replacement, the Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, including as may occur without any prior notice from the Company and without the need for the Company to obtain any further consent from such Holder and Beneficial Owner, (ii) will waive any and all claims, in law and/or in equity, against the Trustee, any paying agent and the Calculation Agent or the Company’s designee for, agree not to initiate a suit against the Trustee, any paying agent and the Calculation Agent or the Company’s designee in respect of, and agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will be liable for, the determination of or the failure to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, and any losses suffered in connection therewith and (iii) will agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will have any obligation to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes (including any adjustments thereto), including in the event of any failure by the Company to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes. Subject to the limitations specified on the reverse of this Security, interest on the Securities shall be computed and payable in arrear on the basis of a 360-day year of twelve 30-day months during the Fixed Rate Period and on the basis of the actual number of days in each Floating Rate Interest Period and a 360-day year during the Floating Rate Period. The Calculation Agent, initially The Bank of New York Mellon, New York (the “Calculation Agent”), will determine the Benchmark in any circumstance where the Calculation Agent is so required under the terms of the Securities and the Indenture, in accordance with the provisions set forth in Annex I to the Seventeenth Supplemental Indenture. All calculations made by the Calculation Agent for the purposes of calculating the interest rate on the Securities shall be conclusive and binding on the Holders of the Securities, the Company and the Trustee, absent manifest error. None of the Company, the Calculation Agent, the Trustee or any paying agent shall be responsible for determining whether manifest error has occurred or any liability therefor. If any scheduled Fixed Rate Period Interest Payment Date would fall on a day that is not a Business Day (as defined below), the Company will pay interest on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the scheduled Fixed Rate Period Interest Payment Date. If any scheduled Floating Rate Period Interest Payment Date, other than the applicable Maturity Date, would fall on a day that is not a Business Day, such Floating Rate Period Interest Payment Date will be an annual rate equal postponed to the sum of next succeeding Business Day, except that if that Business Day falls in the Benchmark Replacement plus 2.347%. If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFRnext succeeding calendar month, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, Interest Payment Date will be the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, or any successor source. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”), SOFRi for such day “i” shall be SOFR published in respect of the first immediately preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s WebsiteDay.
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Government Securities. Notwithstanding anything to the contrary in the Indenture or this Noteherein, if the Company or its designee determines determine on or prior to the relevant Reference SOFR Determination Time (as defined below) that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining Compounded SOFR, then the benchmark replacement provisions set forth below under “—Effect of Benchmark Transition Event” in the Senior Preferred Debt Securities Indenture will thereafter apply to all determinations of the rate of interest payable on the SP 2028 Floating Rate Notes. For the avoidance of doubt, in accordance with the benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate payable for each Interest Period during on the SP 2028 Floating Rate Period Notes will be an annual rate equal to the sum of the Benchmark Replacement plus 2.347%and the applicable margin. If a SOFR IndexStart or SOFR IndexEnd This Note is not published one of the series designated on the associated Interest Payment Determination Date face hereof, initially limited in aggregate principal amount to $750,000,000; provided, that the Company may, from time to time, without the consent of the Holders of the SP 2028 Floating Rate Notes, issue additional Senior Preferred Debt Securities under the Senior Preferred Debt Securities Indenture, having the same ranking and a Benchmark Transition Event same interest rate, maturity, redemption terms and its related Benchmark Replacement Date have not occurred with respect to SOFRother terms, “Compounded SOFR” means, except for the applicable Interest Period price to the public, original interest accrual date, issue date and first interest payment date, as the SP 2028 Floating Rate Notes; provided, however, that such additional SP 2028 Floating Rate Notes will not have the same CUSIP, ISIN or other identifying number as the Outstanding SP 2028 Floating Rate Notes unless the additional SP 2028 Floating Rate Notes are fungible with the SP 2028 Floating Rate Notes for U.S. federal income tax purposes. Any such additional SP 2028 Floating Rate Notes, together with the SP 2028 Floating Rate Notes, will constitute a single series of SP 2028 Floating Rate Notes under the Senior Preferred Debt Securities Indenture and shall be included in the definition of “Senior Preferred Debt Securities” in the Base Indenture where the context requires. The payment obligations of the Company in respect of principal under the SP 2028 Floating Rate Period for which such index is not availableNotes constitute direct, unconditional, unsubordinated and unsecured obligations (créditos ordinarios) of the rate of return on a daily compounded interest investment calculated Company and, in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, Additional Provision 14.2 of Law 11/2015 (but subject to any other ranking that may apply as a result of any mandatory provision of law (or any successor source. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”otherwise)), SOFRi for such day “i” shall be SOFR published in respect upon the insolvency of the first preceding U.S. Government Securities Business Day for which SOFR was published on Company, such payment obligations rank (i) pari passu among themselves and with any other Senior Higher Priority Liabilities (as defined below) and (ii) senior to (x) any Senior Non Preferred Liabilities (as defined below) and (y) any present and future subordinated obligations (créditos subordinados) of the SOFR Administrator’s WebsiteCompany in accordance with Article 281 of the Spanish Insolvency Law (as defined below).
Appears in 1 contract
Samples: Third Supplemental Indenture (Banco Santander, S.A.)
Government Securities. Notwithstanding anything to clauses (1) and (2) of the contrary in the Indenture or this Notedefinition of “SOFR” above, if the Company or its designee (in consultation with the Company) determines on or prior to the relevant Reference Time (as defined below) Interest Determination Date that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions “Benchmark Transition Provisions” set forth below under “—Effect of Benchmark Transition Event” in Annex I to the Eighteenth Supplemental Indenture will thereafter apply to all determinations of the rate of interest payable on the NotesSecurities during the Floating Rate Period. For the avoidance of doubt, in In accordance with and subject to the benchmark replacement provisionsBenchmark Transition Provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the amount of interest that will be payable on the Securities during each Floating Rate Interest Period will be determined by reference to a rate per annum equal to the Benchmark Replacement plus the Margin, provided that, if the Company or its designee (in consultation with the Company) are unable to or do not timely determine a Benchmark Replacement in accordance with the Benchmark Transition Provisions or if there is a Derecognition Risk, the interest rate for each the related Floating Rate Interest Period will be equal to the interest rate in effect for the immediately preceding Floating Rate Interest Period, or in the case of the Interest Determination Date prior to the first Floating Rate Period Interest Payment Date, the Fixed Interest Rate. By its acquisition of the Securities, each Holder and Beneficial Owner (i) will acknowledge, accept, consent and agree to be bound by the Company’s or its designee’s determination of a Benchmark Transition Event, a Benchmark Replacement Date, the Benchmark Replacement, the Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, including as may occur without any prior notice from the Company and without the need for the Company to obtain any further consent from such Holder and Beneficial Owner, (ii) will waive any and all claims, in law and/or in equity, against the Trustee, any paying agent and the Calculation Agent or the Company’s designee for, agree not to initiate a suit against the Trustee, any paying agent and the Calculation Agent or the Company’s designee in respect of, and agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will be liable for, the determination of or the failure to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, and any losses suffered in connection therewith and (iii) will agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will have any obligation to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes (including any adjustments thereto), including in the event of any failure by the Company to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes. Subject to the limitations specified on the reverse of this Security, interest on the Securities shall be computed and payable in arrear on the basis of a 360-day year of twelve 30-day months during the Fixed Rate Period and on the basis of the actual number of days in each Floating Rate Interest Period and a 360-day year during the Floating Rate Period. The Calculation Agent, initially The Bank of New York Mellon, New York (the “Calculation Agent”), will determine the Benchmark in any circumstance where the Calculation Agent is so required under the terms of the Securities and the Indenture, in accordance with the provisions set forth in Annex I to the Eighteenth Supplemental Indenture. All calculations made by the Calculation Agent for the purposes of calculating the interest rate on the Securities shall be conclusive and binding on the Holders of the Securities, the Company and the Trustee, absent manifest error. None of the Company, the Calculation Agent, the Trustee or any paying agent shall be responsible for determining whether manifest error has occurred or any liability therefor. If any scheduled Fixed Rate Period Interest Payment Date would fall on a day that is not a Business Day (as defined below), the Company will pay interest on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the scheduled Fixed Rate Period Interest Payment Date. If any scheduled Floating Rate Period Interest Payment Date, other than the applicable Maturity Date, would fall on a day that is not a Business Day, such Floating Rate Period Interest Payment Date will be an annual rate equal postponed to the sum of next succeeding Business Day, except that if that Business Day falls in the Benchmark Replacement plus 2.347%. If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFRnext succeeding calendar month, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, Interest Payment Date will be the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, or any successor source. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”), SOFRi for such day “i” shall be SOFR published in respect of the first immediately preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s WebsiteDay.
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Government Securities. Notwithstanding anything to the contrary in the Indenture or this Note, if If the Company or its designee determines on or prior to the relevant Reference Time (as defined below) that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining Compounded SOFR, then the benchmark replacement provisions set forth below under “—Effect of Benchmark Transition Event” will thereafter apply to all determinations of the rate of interest payable on each series of the Floating Rate Notes. For the avoidance of doubt, in In accordance with the benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate for each Interest Period during on each series of the Floating Rate Period Notes will be an annual rate equal to the sum of the Benchmark Replacement plus 2.347%and the applicable margin. If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, or any successor sourcexxxxx://xxx.xxxxxxxxxx.xxx/markets/treasury-repo-reference-rates-information. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-180- calendar days” shall be removed. If SOFR does not so appear for any day day, “i” in the Observation Period (“SOFRi”)Period, SOFRi for such day “i” shall be SOFR published in respect of the first preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s Website. If the Company or its designee determines that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any determination of the Benchmark on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to each series of the Floating Rate Notes in respect of such determination on such date and all determinations on all subsequent dates. In connection with the implementation of a Benchmark Replacement, the Company or its designee will have the right to make Benchmark Replacement Conforming Changes from time to time. Any determination, decision or election that may be made by the Company or its designee pursuant to the benchmark replacement provisions described herein, including any determination with respect to tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection: (i) will be conclusive and binding absent manifest error; (ii) if made by the Company, will be made in its sole discretion; (iii) if made by the Company’s designee, will be made after consultation with the Company, and such designee will not make any such determination, decision or election to which the Company shall object; and (iv) shall become effective without consent from the Holders of any series of the Floating Rate Notes or any other party. Any determination, decision or election pursuant to the benchmark replacement provisions shall be made by the Company or its designee (which may be the Company’s affiliate but in no event shall be the initial Calculation Agent, the Trustee or the initial paying agent) on the basis as described above. The Calculation Agent shall have no liability for not making any such determination, decision or election.
Appears in 1 contract
Samples: Supplemental Indenture (Thermo Fisher Scientific Inc.)
Government Securities. Notwithstanding anything to the contrary in the Indenture or this Note, if If the Company or its designee determines on or prior to the relevant Reference Time (as defined below) that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining Compounded SOFR, then the benchmark replacement provisions set forth below under “—Effect of Benchmark Transition Event” will thereafter apply to all determinations of the rate of interest payable on the NotesSecurities. For the avoidance of doubt, in In accordance with the benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate for each Interest Period during on the Floating Rate Period Securities will be an annual rate equal to the sum of the Benchmark Replacement plus 2.347%and the applicable margin. If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, or any successor sourcexxxxx://xxx.xxxxxxxxxx.xxx/markets/treasury-repo-reference-rates-information. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-180- calendar days” shall be removed. If SOFR does not so appear for any day day, “i” in the Observation Period (“SOFRi”)Period, SOFRi for such day “i” shall be SOFR published in respect of the first preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s Website. If the Company or its designee determines that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any determination of the Benchmark on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the Securities in respect of such determination on such date and all determinations on all subsequent dates. In connection with the implementation of a Benchmark Replacement, the Company or its designee will have the right to make Benchmark Replacement Conforming Changes from time to time. Any determination, decision or election that may be made by the Company or its designee pursuant to the benchmark replacement provisions described herein, including any determination with respect to tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection: (i) will be conclusive and binding absent manifest error; (ii) if made by the Company, will be made in its sole discretion; (iii) if made by the Company’s designee, will be made after consultation with the Company, and such designee will not make any such determination, decision or election to which the Company shall object; and (iv) shall become effective without consent from the Holders of the Securities or any other party. Any determination, decision or election pursuant to the benchmark replacement provisions shall be made by the Company or its designee (which may be the Company’s affiliate but in no event shall be the initial Calculation Agent, the Trustee or the initial paying agent) on the basis as described above. The Calculation Agent shall have no liability for not making any such determination, decision or election. The interest rate and amount of interest to be paid on the Securities for each Interest Period will be determined by the Calculation Agent. The Bank of New York Mellon Trust Company, N.A. will initially serve as the Calculation Agent. All determinations made by the Calculation Agent shall, in the absence of manifest error, be conclusive for all purposes and binding on the Company and the Holders of the Securities. So long as Compounded SOFR is required to be determined with respect to the Securities, there will at all times be a Calculation Agent. In the event that any then acting Calculation Agent shall be unable or unwilling to act, or that such Calculation Agent shall fail duly to establish Compounded SOFR for any Interest Period, or the Company proposes to remove such Calculation Agent, the Company shall appoint another Calculation Agent. None of the Trustee, the paying agent and the Calculation Agent shall be under any obligation (i) to monitor, determine or verify the unavailability or cessation of SOFR or the SOFR Index, or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event or related Benchmark Replacement Date, (ii) to select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate or index have been satisfied, (iii) to select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing. None of the Trustee, the paying agent and the Calculation Agent shall be liable for any inability, failure or delay on its part to perform any of its duties set forth herein as a result of the unavailability of SOFR, the SOFR Index or other applicable Benchmark Replacement, including as a result of any failure, inability, delay, error or inaccuracy on the part of any other transaction party in providing any direction, instruction, notice or information required or contemplated herein and reasonably required for the performance of such duties.
Appears in 1 contract
Samples: Supplemental Indenture (Thermo Fisher Scientific Inc.)
Government Securities. Notwithstanding anything to clauses (1) and (2) of the contrary in the Indenture or this Notedefinition of “SOFR” above, if the Company or its designee (in consultation with the Company) determines on or prior to the relevant Reference Time (as defined below) Interest Determination Date that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions “Benchmark Transition Provisions” set forth below under “—Effect of Benchmark Transition Event” in Annex I to the Fifteenth Supplemental Indenture will thereafter apply to all determinations of the rate of interest payable on the NotesSecurities. For the avoidance of doubt, in In accordance with and subject to the benchmark replacement provisionsBenchmark Transition Provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the amount of interest rate for that will be payable on the Securities during each Interest Period during the Floating Rate Period will be an annual determined by reference to a rate per annum equal to the sum of the Benchmark Replacement plus 2.347%. If a SOFR IndexStart the Margin, provided that, if the Company or SOFR IndexEnd is its designee (in consultation with the Company) are unable to or do not published on the associated Interest Payment Determination Date and timely determine a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, the rate of return on a daily compounded interest investment calculated in accordance with the formula Benchmark Transition Provisions or if there is a Derecognition Risk, the interest rate for SOFR Averagesthe related Interest Period will be equal to the interest rate in effect for the immediately preceding Interest Period, or in the case of the Interest Determination Date prior to the first Interest Payment Date, the initial rate of interest which would have been applicable for the first Interest Period had the Securities been outstanding for a period equal in duration to the scheduled first Interest Period but ending on (and excluding) the Issue Date (and applying the Margin). By its acquisition of the Securities, each Holder and Beneficial Owner (i) will acknowledge, accept, consent and agree to be bound by the Company’s or its designee’s determination of a Benchmark Transition Event, a Benchmark Replacement Date, the Benchmark Replacement, the Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, including as may occur without any prior notice from the Company and without the need for the Company to obtain any further consent from such Holder and Beneficial Owner, (ii) will waive any and all claims, in law and/or in equity, against the Trustee, any paying agent and the Calculation Agent or the Company’s designee for, agree not to initiate a suit against the Trustee, any paying agent and the Calculation Agent or the Company’s designee in respect of, and definitions required for such formulaagree that none of the Trustee, published any paying agent or the Calculation Agent or the Company’s designee will be liable for, the determination of or the failure to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, and any losses suffered in connection therewith and (iii) will agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will have any obligation to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes (including any adjustments thereto), including in the event of any failure by the Company to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes. Subject to the limitations specified on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-ratesreverse of this Security, or interest on the Securities shall be computed and payable in arrear on the basis of the actual number of days in each Interest Period and a 360-day year. The Calculation Agent, initially The Bank of New York Mellon, New York (the “Calculation Agent”), will determine the Benchmark in any successor sourcecircumstance where the Calculation Agent is so required under the terms of the Securities and the Indenture, in accordance with the provisions set forth in Annex I to the Fifteenth Supplemental Indenture. For All calculations made by the Calculation Agent for the purposes of this provisioncalculating the interest rate on the Securities shall be conclusive and binding on the Holders of the Securities, references the Company and the Trustee, absent manifest error. None of the Company, the Calculation Agent, the Trustee or any paying agent shall be responsible for determining whether manifest error has occurred or any liability therefor. If any scheduled Interest Payment Date, other than the applicable Maturity Date, would fall on a day that is not a Business Day, such Interest Payment Date will be postponed to the next succeeding Business Day, except that if that Business Day falls in the SOFR Averages compounding formula and related definitions to “calculation period” shall next succeeding calendar month, the Interest Payment Date will be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”), SOFRi for such day “i” shall be SOFR published in respect of the first immediately preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s WebsiteDay.
Appears in 1 contract
Government Securities. Notwithstanding anything to clauses (1) and (2) of the contrary in the Indenture or this Notedefinition of “SOFR” above, if the Company or its designee (in consultation with the Company) determines on or prior to the relevant Reference Time (as defined below) Interest Determination Date that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions “Benchmark Transition Provisions” set forth below under “—Effect of Benchmark Transition Event” in Annex I to the Fourteenth Supplemental Indenture will thereafter apply to all determinations of the rate of interest payable on the NotesSecurity during the Floating Rate Period. For the avoidance of doubt, in In accordance with and subject to the benchmark replacement provisionsBenchmark Transition Provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the amount of interest that will be payable on the Security during each Floating Rate Interest Period will be determined by reference to a rate per annum equal to the Benchmark Replacement plus the Margin and the amount of interest that will be payable on the Security during each Floating Rate Interest Period will be determined by reference to a rate per annum equal to the Benchmark Replacement plus the Margin, provided that, if the Company or its designee (in consultation with the Company) are unable to or do not timely determine a Benchmark Replacement in accordance with the Benchmark Transition Provisions or if there is a Derecognition Risk, the interest rate for each the related Floating Rate Interest Period will be equal to the interest rate in effect for the immediately preceding Floating Rate Interest Period, or in the case of the Interest Determination Date prior to the first Floating Rate Period Interest Payment Date, the Fixed Interest Rate. By its acquisition of the Securities, each Holder and Beneficial Owner (i) will acknowledge, accept, consent and agree to be bound by the Company’s or its designee’s determination of a Benchmark Transition Event, a Benchmark Replacement Date, the Benchmark Replacement, the Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, including as may occur without any prior notice from the Company and without the need for the Company to obtain any further consent from such Holder and Beneficial Owner, (ii) will waive any and all claims, in law and/or in equity, against the Trustee, any paying agent and the Calculation Agent or the Company’s designee for, agree not to initiate a suit against the Trustee, any paying agent and the Calculation Agent or the Company’s designee in respect of, and agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will be liable for, the determination of or the failure to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, and any losses suffered in connection therewith and (iii) will agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will have any obligation to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes (including any adjustments thereto), including in the event of any failure by the Company to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes. Subject to the limitations specified on the reverse of this Security, interest on the Securities shall be computed and payable in arrear on the basis of a 360-day year of twelve 30-day months during the Fixed Rate Period and on the basis of the actual number of days in each Floating Rate Interest Period and a 360-day year during the Floating Rate Period. The Calculation Agent, initially the Bank of New York Mellon, New York (the “Calculation Agent”), will determine the Benchmark in any circumstance where the Calculation Agent is so required under the terms of the Securities and the Indenture, in accordance with the provisions set forth in Annex I to the Fourteenth Supplemental Indenture. All calculations made by the Calculation Agent for the purposes of calculating the interest rate on the Securities shall be conclusive and binding on the Holders of the Securities, the Company and the Trustee, absent manifest error. None of the Company, the Calculation Agent, the Trustee or any paying agent shall be responsible for determining whether manifest error has occurred or any liability therefor. If any scheduled Fixed Rate Period Interest Payment Date would fall on a day that is not a Business Day (as defined below), the Company will pay interest on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the scheduled Fixed Rate Period Interest Payment Date. If any scheduled Floating Rate Period Interest Payment Date, other than the applicable Maturity Date, would fall on a day that is not a Business Day, such Floating Rate Period Interest Payment Date will be an annual rate equal postponed to the sum of next succeeding Business Day, except that if that Business Day falls in the Benchmark Replacement plus 2.347%. If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFRnext succeeding calendar month, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, Interest Payment Date will be the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, or any successor source. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”), SOFRi for such day “i” shall be SOFR published in respect of the first immediately preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s WebsiteDay.
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Government Securities. Notwithstanding anything to clauses (1) and (2) of the contrary in the Indenture or this Notedefinition of “SOFR” above, if the Company or its designee (in consultation with the Company) determines on or prior to the relevant Reference Time (as defined below) Interest Determination Date that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions “Benchmark Transition Provisions” set forth below under “—Effect of Benchmark Transition Event” in Annex I to the Seventeenth Supplemental Indenture will thereafter apply to all determinations of the rate of interest payable on the NotesSecurities. For the avoidance of doubt, in In accordance with and subject to the benchmark replacement provisionsBenchmark Transition Provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the amount of interest rate for that will be payable on the Securities during each Interest Period during the Floating Rate Period will be an annual determined by reference to a rate per annum equal to the sum of the Benchmark Replacement plus 2.347%. If a SOFR IndexStart the Margin, provided that, if the Company or SOFR IndexEnd is its designee (in consultation with the Company) are unable to or do not published on the associated Interest Payment Determination Date and timely determine a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, the rate of return on a daily compounded interest investment calculated in accordance with the formula Benchmark Transition Provisions or if there is a Derecognition Risk, the interest rate for SOFR Averagesthe related Interest Period will be equal to the interest rate in effect for the immediately preceding Interest Period, or in the case of the Interest Determination Date prior to the first Interest Payment Date, the initial rate of interest which would have been applicable for the first Interest Period had the Securities been outstanding for a period equal in duration to the scheduled first Interest Period but ending on (and excluding) the Issue Date (and applying the Margin). By its acquisition of the Securities, each Holder and Beneficial Owner (i) will acknowledge, accept, consent and agree to be bound by the Company’s or its designee’s determination of a Benchmark Transition Event, a Benchmark Replacement Date, the Benchmark Replacement, the Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, including as may occur without any prior notice from the Company and without the need for the Company to obtain any further consent from such Holder and Beneficial Owner, (ii) will waive any and all claims, in law and/or in equity, against the Trustee, any paying agent and the Calculation Agent or the Company’s designee for, agree not to initiate a suit against the Trustee, any paying agent and the Calculation Agent or the Company’s designee in respect of, and definitions required for such formulaagree that none of the Trustee, published any paying agent or the Calculation Agent or the Company’s designee will be liable for, the determination of or the failure to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, and any losses suffered in connection therewith and (iii) will agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will have any obligation to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes (including any adjustments thereto), including in the event of any failure by the Company to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes. Subject to the limitations specified on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-ratesreverse of this Security, or interest on the Securities shall be computed and payable in arrear on the basis of the actual number of days in each Interest Period and a 360-day year. The Calculation Agent, initially The Bank of New York Mellon, New York (the “Calculation Agent”), will determine the Benchmark in any successor sourcecircumstance where the Calculation Agent is so required under the terms of the Securities and the Indenture, in accordance with the provisions set forth in Annex I to the Seventeenth Supplemental Indenture. For All calculations made by the Calculation Agent for the purposes of this provisioncalculating the interest rate on the Securities shall be conclusive and binding on the Holders of the Securities, references the Company and the Trustee, absent manifest error. None of the Company, the Calculation Agent, the Trustee or any paying agent shall be responsible for determining whether manifest error has occurred or any liability therefor. If any scheduled Interest Payment Date, other than the applicable Maturity Date, would fall on a day that is not a Business Day, such Interest Payment Date will be postponed to the next succeeding Business Day, except that if that Business Day falls in the SOFR Averages compounding formula and related definitions to “calculation period” shall next succeeding calendar month, the Interest Payment Date will be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”), SOFRi for such day “i” shall be SOFR published in respect of the first immediately preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s WebsiteDay.
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Government Securities. Notwithstanding anything to the contrary in the Indenture or this Noteherein, if the Company or its designee determines determine on or prior to the relevant Reference SOFR Determination Time (as defined below) that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining Compounded SOFR, then the benchmark replacement provisions set forth below under “—Effect of Benchmark Transition Event” in the Senior Non Preferred Debt Securities Indenture will thereafter apply to all determinations of the rate of interest payable on the SNP 2028 Floating Rate Notes. For the avoidance of doubt, in accordance with the benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate payable for each Interest Period during on the SNP 2028 Floating Rate Period Notes will be an annual rate equal to the sum of the Benchmark Replacement plus 2.347%and the applicable margin. If a SOFR IndexStart or SOFR IndexEnd This Note is not published one of the series designated on the associated Interest Payment Determination Date face hereof, initially limited in aggregate principal amount to $400,000,000; provided, that the Company may, from time to time, without the consent of the Holders of the SNP 2028 Floating Rate Notes, issue additional Senior Non Preferred Debt Securities under the Senior Non Preferred Debt Securities Indenture, having the same ranking and a Benchmark Transition Event same interest rate, maturity, redemption terms and its related Benchmark Replacement Date have not occurred with respect to SOFRother terms, “Compounded SOFR” means, except for the applicable Interest Period price to the public, original interest accrual date, issue date and first interest payment date, as the SNP 2028 Floating Rate Notes; provided, however, that such additional SNP 2028 Floating Rate Notes will not have the same CUSIP, ISIN or other identifying number as the Outstanding SNP 2028 Floating Rate Notes unless the additional SNP 2028 Floating Rate Notes are fungible with the SNP 2028 Floating Rate Notes for U.S. federal income tax purposes. Any such additional SNP 2028 Floating Rate Notes, together with the SNP 2028 Floating Rate Notes, will constitute a single series of SNP 2028 Floating Rate Notes under the Senior Non Preferred Debt Securities Indenture and shall be included in the definition of “Senior Non Preferred Debt Securities” in the Base Indenture where the context requires. The payment obligations of the Company in respect of principal under the SNP 2028 Floating Rate Period for which such index is not availableNotes constitute direct, unconditional, unsubordinated and unsecured senior non preferred obligations (créditos ordinarios no preferentes) of the rate of return on a daily compounded interest investment calculated Company and, in accordance with the formula for SOFR AveragesAdditional Provision 14.2 of Law 11/2015, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, but subject to any other ranking that may apply as a result of any mandatory provision of law (or any successor source. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”otherwise), SOFRi for upon the insolvency of the Company, such day “payment obligations rank (i” shall be SOFR published ) pari passu among themselves and with any other Senior Non Preferred Liabilities, (ii) junior to the Senior Higher Priority Liabilities (and, accordingly, upon the insolvency of the Company, the payment obligations of the Company in respect of principal under the first preceding U.S. Government Securities Business Day for which SOFR was published on SNP 2028 Floating Rate Notes will be met after payment in full of the SOFR Administrator’s WebsiteSenior Higher Priority Liabilities) and (iii) senior to any present and future subordinated obligations (créditos subordinados) of the Company in accordance with Article 281 of the Spanish Insolvency Law.
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Samples: First Supplemental Indenture (Banco Santander, S.A.)
Government Securities. Notwithstanding anything to clauses (1) and (2) of the contrary in the Indenture or this Notedefinition of “SOFR” above, if the Company or its designee (in consultation with the Company) determines on or prior to the relevant Reference Time (as defined below) Interest Determination Date that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions “Benchmark Transition Provisions” set forth below under “—Effect of Benchmark Transition Event” in Annex I to the Fifteenth Supplemental Indenture will thereafter apply to all determinations of the rate of interest payable on the NotesSecurities during the Floating Rate Period. For the avoidance of doubt, in In accordance with and subject to the benchmark replacement provisionsBenchmark Transition Provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the amount of interest that will be payable on the Securities during each Floating Rate Interest Period will be determined by reference to a rate per annum equal to the Benchmark Replacement plus the Margin, provided that, if the Company or its designee (in consultation with the Company) are unable to or do not timely determine a Benchmark Replacement in accordance with the Benchmark Transition Provisions or if there is a Derecognition Risk, the interest rate for each the related Floating Rate Interest Period will be equal to the interest rate in effect for the immediately preceding Floating Rate Interest Period, or in the case of the Interest Determination Date prior to the first Floating Rate Period Interest Payment Date, the Fixed Interest Rate. By its acquisition of the Securities, each Holder and Beneficial Owner (i) will acknowledge, accept, consent and agree to be bound by the Company’s or its designee’s determination of a Benchmark Transition Event, a Benchmark Replacement Date, the Benchmark Replacement, the Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, including as may occur without any prior notice from the Company and without the need for the Company to obtain any further consent from such Holder and Beneficial Owner, (ii) will waive any and all claims, in law and/or in equity, against the Trustee, any paying agent and the Calculation Agent or the Company’s designee for, agree not to initiate a suit against the Trustee, any paying agent and the Calculation Agent or the Company’s designee in respect of, and agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will be liable for, the determination of or the failure to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, and any losses suffered in connection therewith and (iii) will agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will have any obligation to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes (including any adjustments thereto), including in the event of any failure by the Company to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes. Subject to the limitations specified on the reverse of this Security, interest on the Securities shall be computed and payable in arrear on the basis of a 360-day year of twelve 30-day months during the Fixed Rate Period and on the basis of the actual number of days in each Floating Rate Interest Period and a 360-day year during the Floating Rate Period. The Calculation Agent, initially The Bank of New York Mellon, New York (the “Calculation Agent”), will determine the Benchmark in any circumstance where the Calculation Agent is so required under the terms of the Securities and the Indenture, in accordance with the provisions set forth in Annex I to the Fifteenth Supplemental Indenture. All calculations made by the Calculation Agent for the purposes of calculating the interest rate on the Securities shall be conclusive and binding on the Holders of the Securities, the Company and the Trustee, absent manifest error. None of the Company, the Calculation Agent, the Trustee or any paying agent shall be responsible for determining whether manifest error has occurred or any liability therefor. If any scheduled Fixed Rate Period Interest Payment Date would fall on a day that is not a Business Day (as defined below), the Company will pay interest on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the scheduled Fixed Rate Period Interest Payment Date. If any scheduled Floating Rate Period Interest Payment Date, other than the applicable Maturity Date, would fall on a day that is not a Business Day, such Floating Rate Period Interest Payment Date will be an annual rate equal postponed to the sum of next succeeding Business Day, except that if that Business Day falls in the Benchmark Replacement plus 2.347%. If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFRnext succeeding calendar month, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, Interest Payment Date will be the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, or any successor source. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”), SOFRi for such day “i” shall be SOFR published in respect of the first immediately preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s WebsiteDay.
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Government Securities. Notwithstanding anything to clauses (1) and (2) of the contrary in the Indenture or this Notedefinition of “SOFR” above, if the Company or its designee (in consultation with the Company) determines on or prior to the relevant Reference Time (as defined below) Interest Determination Date that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining SOFR, then the benchmark replacement provisions “Benchmark Transition Provisions” set forth below under “—Effect of Benchmark Transition Event” in Annex I to the Fifth Supplemental Indenture will thereafter apply to all determinations of the rate of interest payable on the NotesSecurities during the Floating Rate Period. For the avoidance of doubt, in In accordance with and subject to the benchmark replacement provisionsBenchmark Transition Provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the amount of interest that will be payable on the Securities during each Floating Rate Interest Period will be determined by reference to a rate per annum equal to the Benchmark Replacement plus the Margin, provided that, if the Company or its designee (in consultation with the Company) are unable to or do not timely determine a Benchmark Replacement in accordance with the Benchmark Transition Provisions or if there is a Derecognition Risk, the interest rate for each the related Floating Rate Interest Period will be equal to the interest rate in effect for the immediately preceding Floating Rate Interest Period, or in the case of the Interest Determination Date prior to the first Floating Rate Period Interest Payment Date, the Fixed Interest Rate. By its acquisition of the Securities, each Holder and Beneficial Owner (i) will acknowledge, accept, consent and agree to be bound by the Company’s or its designee’s determination of a Benchmark Transition Event, a Benchmark Replacement Date, the Benchmark Replacement, the Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, including as may occur without any prior notice from the Company and without the need for the Company to obtain any further consent from such Holder and Beneficial Owner, (ii) will waive any and all claims, in law and/or in equity, against the Trustee, any paying agent and the Calculation Agent or the Company’s designee for, agree not to initiate a suit against the Trustee, any paying agent and the Calculation Agent or the Company’s designee in respect of, and agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will be liable for, the determination of or the failure to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, and any losses suffered in connection therewith and (iii) will agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will have any obligation to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes (including any adjustments thereto), including in the event of any failure by the Company to determine any Benchmark Transition Event, any Benchmark Replacement Date, any Benchmark Replacement, any Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes. Subject to the limitations specified on the reverse of this Security, interest on the Securities shall be computed and payable in arrear on the basis of a 360-day year of twelve 30-day months during the Fixed Rate Period and on the basis of the actual number of days in each Floating Rate Interest Period and a 360-day year during the Floating Rate Period. The Calculation Agent, initially the Bank of New York Mellon, New York (the “Calculation Agent”), will determine the Benchmark in any circumstance where the Calculation Agent is so required under the terms of the Securities and the Indenture, in accordance with the provisions set forth in Annex I to the Fifth Supplemental Indenture. All calculations made by the Calculation Agent for the purposes of calculating the interest rate on the Securities shall be conclusive and binding on the Holders of the Securities, the Company and the Trustee, absent manifest error. None of the Company, the Calculation Agent, the Trustee or any paying agent shall be responsible for determining whether manifest error has occurred or any liability therefor. If any scheduled Fixed Rate Period Interest Payment Date would fall on a day that is not a Business Day (as defined below), the Company will pay interest on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the scheduled Fixed Rate Period Interest Payment Date. If any scheduled Floating Rate Period Interest Payment Date, other than the applicable Maturity Date, would fall on a day that is not a Business Day, such Floating Rate Period Interest Payment Date will be an annual rate equal postponed to the sum of next succeeding Business Day, except that if that Business Day falls in the Benchmark Replacement plus 2.347%. If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFRnext succeeding calendar month, “Compounded SOFR” means, for the applicable Interest Period in the Floating Rate Period for which such index is not available, Interest Payment Date will be the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at xxxxx://xxx.xxxxxxxxxx.xxx/markets/reference-rates/additional-information-about-reference-rates, or any successor source. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180-calendar days” shall be removed. If SOFR does not so appear for any day “i” in the Observation Period (“SOFRi”), SOFRi for such day “i” shall be SOFR published in respect of the first immediately preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s WebsiteDay.
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