§ 18-402 — Continuity of contract and safe harbor

§ 18-402. Continuity of contract and safe harbor. 1. The selection or\nuse of a recommended benchmark replacement as a benchmark replacement\nunder or in respect of a contract, security or instrument by operation\nof section 18-401 of this article shall constitute:\n a. a commercially reasonable replacement for and a commercially\nsubstantial equivalent to LIBOR;\n b. a reasonable, comparable or analogous term for LIBOR under or in\nrespect of such contract, security or instrument;\n c. a replacement that is based on a methodology or information that is\nsimilar or comparable to LIBOR; and\n d. substantial performance by any person of any right or obligation\nrelating to or based on LIBOR under or in respect of a contract,\nsecurity or instrument.\n 2. None of: a. a LIBOR discontinuance event or a LIBOR replacement\ndate, b. the selection or use of a recommended benchmark replacement as\na benchmark replacement; or c. the determination, implementation or\nperformance of benchmark replacement conforming changes, in each case,\nby operation of section 18-401 of this article, shall:\n (i) be deemed to impair or affect the right of any person to receive a\npayment, or affect the amount or timing of such payment, under any\ncontract, security, or instrument; or\n (ii) have the effect of (A) discharging or excusing performance under\nany contract, security or instrument for any reason, claim or defense,\nincluding, but not limited to, any force majeure or other provision in\nany contract, security or instrument; (B) giving any person the right to\nunilaterally terminate or suspend performance under any contract,\nsecurity or instrument; (C) constituting a breach of a contract,\nsecurity or instrument; or (D) voiding or nullifying any contract,\nsecurity or instrument.\n 3. No person shall have any liability for damages to any person or be\nsubject to any claim or request for equitable relief arising out of or\nrelated to the selection or use of a recommended benchmark replacement\nor the determination, implementation or performance of benchmark\nreplacement conforming changes, in each case, by operation of section\n18-401 of this article, and such selection or use of the recommended\nbenchmark replacement or such determination implementation or\nperformance of benchmark replacement conforming changes shall not give\nrise to any claim or cause of action by any person in law or in equity.\n 4. The selection or use of a recommended benchmark replacement or the\ndetermination, implementation, or performance of benchmark replacement\nconforming changes, by operation of section 18-401 of this article,\nshall be deemed to:\n a. not be an amendment or modification of any contract, security or\ninstrument; and\n b. not prejudice, impair or affect any person's rights, interests or\nobligations under or in respect of any contract, security or instrument.\n 5. Except as provided in either subdivision one or subdivision three\nof section 18-401 of this article, the provisions of this article shall\nnot be interpreted as creating any negative inference or negative\npresumption regarding the validity or enforceability of:\n a. any benchmark replacement that is not a recommended replacement\nbenchmark;\n b. any spread adjustment, or method for calculating or determining a\nspread adjustment, that is not a recommended spread adjustment; or\n c. any changes, alterations or modifications to or in respect of a\ncontract, security or instrument that are not benchmark replacement\nconforming changes.\n