Common use of Non-availability Clause in Contracts

Non-availability. (a) If at any time dollar deposits in the principal amount of any Bank's proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate are not available to such Bank in the London interbank market for the next Interest Period, such Bank shall so notify the Agent, who shall so notify the Borrower, and the obligation of such affected Bank to make or continue or to convert DSR Loans into DSR Loans bearing interest based on the LIBOR Rate shall be immediately suspended and during such suspension be converted into an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base Rate; provided, however, that outstanding DSR Loans bearing interest at the LIBOR Rate shall be converted into DSR Loans bearing interest at the Adjusted Base Rate on the last day of the then current Interest Period applicable to such DSR Loans. (b) If at any time the Interest Rate then in effect based on the LIBOR Rate does not adequately and fairly reflect, in the reasonable judgment of any Bank, the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR Loan bearing interest at the LIBOR Rate during any Interest Period, then such Bank shall notify the Agent, who shall so notify the Borrower, and interest on such Bank's proportionate share of the DSR Loans shall for any subsequent Interest Period accrue at the Adjusted Base Rate. (c) If the Borrower so requests after the suspension of a Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate under this Section 2.19 for at least ten (10) consecutive Business Days based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated hereunder, such Bank shall (consistent with legal and regulatory restrictions) comply with Section 2.20 hereof.

Non-availability. (a) If at any time dollar Dollar deposits in the principal amount of any Bank's proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate Loan are not available to such Bank in the London interbank market for the next Interest Period, such Bank shall so notify the Agent, who shall so notify the Borrower, and the obligation of such affected Bank to make or continue continue, or to convert DSR Loans into DSR Loans bearing interest based on the LIBOR Rate Loans shall be immediately suspended and during such suspension be converted into an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base RateRate Loans; provided, however, that outstanding DSR Loans bearing interest at the LIBOR Rate Loans shall be converted into DSR Loans bearing interest at the Adjusted Base Rate Loans on the last day of the then current Interest Period applicable to such DSR Loans. (b) If at any time the Interest Rate then in effect based on the LIBOR Rate does not adequately and fairly reflect, in the reasonable judgment of any Bank, the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR Loan bearing interest at the LIBOR Rate Loan during any Interest Period, then such Bank shall notify the Agent, who shall so notify the Borrower, and interest on such Bank's proportionate share of the DSR Loans shall for any subsequent Interest Period accrue at the Adjusted Base Rate. (c) If the Borrower so requests after the suspension of a Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate Loans under this Section 2.19 for at least ten thirty (1030) consecutive Business Days days on at least two (2) separate occasions based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated hereunder, such Bank shall (consistent with legal and regulatory restrictions) comply with Section 2.20 hereof.

Non-availability. (a) If at any time dollar deposits in the principal amount of any Bank's proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate are not available to such Bank in the London interbank market for the next Interest Period, such Bank shall so notify the Agent, who shall so notify the Borrower, and the obligation of such affected Bank to make or continue or to convert DSR Loans into DSR Loans bearing interest based on the LIBOR Rate shall be immediately suspended and during such suspension be converted into an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base Rate; providedPROVIDED, howeverHOWEVER, that outstanding DSR Loans bearing interest at the LIBOR Rate shall be converted into DSR Loans bearing interest at the Adjusted Base Rate on the last day of the then current Interest Period applicable to such DSR Loans. (b) If at any time the Interest Rate then in effect based on the LIBOR Rate does not adequately and fairly reflect, in the reasonable judgment of any Bank, the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR Loan bearing interest at the LIBOR Rate during any Interest Period, then such Bank shall notify the Agent, who shall so notify the Borrower, and interest on such Bank's proportionate share of the DSR Loans shall for any subsequent Interest Period accrue at the Adjusted Base Rate. (c) If the Borrower so requests after the suspension of a Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate under this Section SECTION 2.19 for at least ten (10) consecutive Business Days based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated hereunder, such Bank shall (consistent with legal and regulatory restrictions) comply with Section SECTION 2.20 hereof.

Non-availability. (a) If at any time dollar deposits in the principal amount of any BankTerm Lender's proportionate interest in, or obligation under, any DSR the Term Loan bearing interest at the LIBOR Rate are not available for the next Interest Period to such Bank any Term Lender in the London interbank market for the next Interest Periodmarket, such Bank Term Lender shall so notify the Agent, who shall so notify the Borrower, and the LIBOR basis for such Term Loan shall be suspended, or, at the Borrower's option, the obligation of such affected Bank Term Lender to make or continue advance or to convert DSR Loans into DSR Loans bearing continue its proportionate interest based on in the LIBOR Rate Term Loan shall be immediately suspended and during such suspension be converted into an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base Ratesuspended; provided, however, that outstanding DSR Loans bearing interest at if the LIBOR basis is changed to the Short Term Rate or the Federal Funds Rate, Borrower shall be converted into DSR Loans bearing interest at pay any additional costs to the Adjusted Base Rate on the last day Term Lenders incurred as a result of the then current Interest Period applicable to such DSR Loans. (b) change. If at any time the Interest Rate (other than the Fixed Offered Rate) then in effect based on the LIBOR Rate does not adequately and fairly reflectserve as an accurate reference, in the reasonable judgment of any BankTerm Lender, for such Term Lender to determine the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR the Term Loan bearing interest at the LIBOR Rate during any Interest Period, then such Bank Term Lender shall notify the Agent, who shall so notify the Borrower, and interest on such BankTerm Lender's proportionate share of the DSR Loans Term Loan shall for any subsequent Interest Period thereafter accrue at an Interest Rate determined by reference to another basis (LIBOR, Short Term Rate or Federal Funds Rate); provided, however, that if such other Interest Rate also does not serve as an accurate reference for such Term Lender, then such Term Lender shall so notify Agent, who shall so notify Borrower, and the Adjusted Base Rateobligation of such affected Term Lender to advance or to maintain its proportionate interest in the Term Loan shall be suspended. Borrower shall upon demand of Agent pay forthwith in the manner set forth below all amount outstanding, accrued or payable hereunder owing to such affected Term Lender(s). (c) If the Borrower so requests after the suspension of a Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate under this Section 2.19 for at least ten (10) consecutive Business Days based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated hereunder, such Bank shall (consistent with legal and regulatory restrictions) comply with Section 2.20 hereof.

Non-availability. (a) If and whenever, at any time dollar prior to the commencement of any Interest Period, the Bank shall have determined any of the following facts (which determination shall be conclusive): (i) that adequate and fair means do not exist for ascertaining LIBOR during such Interest Period; or (ii) that deposits in the principal amount of any Bank's proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate Dollars are not available to such the Bank in the London interbank market InterBank Market in the ordinary course of business in sufficient amounts or it is impracticable for the next Bank to fund or to continue to fund the Loan in Dollars. (iii) that LIBOR for that Interest Period will not adequately reflect the cost of funding the Loan for that Interest Period, such . the Bank shall so notify the Agent, who shall so notify forthwith give notice (a “Determination Notice”) thereof to the Borrower, and the obligation of such affected Bank to make or continue or to convert DSR Loans into DSR Loans bearing interest based on the LIBOR Rate . A Determination Notice shall be immediately suspended and during such suspension be converted into an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base Rate; provided, however, that outstanding DSR Loans bearing interest at the LIBOR Rate shall be converted into DSR Loans bearing interest at the Adjusted Base Rate on the last day contain particulars of the then current Interest Period applicable relevant circumstances giving rise to such DSR Loansthis issue. After the giving of any Determination Notice the undrawn amount of the Loan shall not be borrowed until notice to the contrary is given to the Borrower by the Bank. (b) If at During the period of 30 Banking nays after any time Determination Notice has been given by the Interest Rate then Bank under Clause 8.6.(a), the Bank shall certify an alternative basis (the “Substitute Basis”) for maintaining the Loan. The Substitute Basis may (without limitation) include alternative interest periods, alternative currencies or alternative rates of interest but shall include a margin above the cost of funds to the Bank equivalent to the Margin. Each Substitute Basis so certified shall be binding upon the Borrower and shall take effect in effect based on accordance with its terms from the LIBOR Rate does not adequately and fairly reflect, date specified in the reasonable judgment of any Bank, Determination Notice until such time as the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR Loan bearing interest at notifies the LIBOR Rate during any Interest Period, then such Bank shall notify the Agent, who shall so notify the Borrower, and interest on such Bank's proportionate share Borrower that none of the DSR Loans circumstances specified in Sub-clause 8.6. (a) continues to exist whereupon the normal interest rate fixing provisions of the Agreement shall for any subsequent Interest Period accrue at the Adjusted Base Rateapply. (c) In any event, during the thirty (30) days following the giving of a Determination Notice, the Borrower and the Bank shall negotiate in good faith in order to arrive at the Substitute Basis for the Bank to fund or continue to fund the Loan (or the relevant part thereof) during such Interest Period. If within such thirty (30) day period the Substitute Basis to fund or to continue to fund the Loan (or the relevant part thereof) is agreed upon, then such Substitute Basis shall take effect in accordance with its terms. If the Borrower so requests after and the suspension of a Bank's obligation Bank fails to make DSR Loans bearing interest agree on such Substitute Basis within such thirty (30) day period and such circumstances are continuing at the LIBOR Rate under end of such thirty day period, then the Bank shall set a Substitute Basis as per Clause 8.6. (b). If the circumstance shall continue at the end of such interest period, the procedure in this Section 2.19 for at least ten Clause 8.6 (10c) consecutive shall be repeated. If the Borrower shall not agree with such rate then the Borrower may give not less than fifteen (15) Business Days based on circumstances not generally applicable irrevocable notice of prepayment to United States or foreign lenders making loans the Bank in which case the commitment hereunder of the types contemplated hereunder, such Bank shall (consistent thereupon be cancelled and, if the Loan is outstanding, the Borrower shall prepay the Loan on the first Business Day after such period in accordance with legal the terms of this Agreement and regulatory restrictions) comply with Section 2.20 hereofthe obligations of the Bank shall thereupon terminate.

Non-availability. (a) If at any time dollar Dollar deposits in the principal amount of any Bank's proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate Loan are not available to such Bank in the London interbank market for the next Interest Period, such Bank shall so notify the Agent, who shall so notify the Borrower, and the obligation of such affected Bank to make or continue continue, or to convert DSR Loans into DSR Loans bearing interest based on the LIBOR Rate Loans shall be immediately suspended and during such suspension be converted into an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base RateRate Loans; provided, however, that outstanding DSR Loans bearing interest at the LIBOR Rate Loans shall be converted into DSR Loans bearing interest at the Adjusted Base Rate Loans on the last day of the then current Interest Period applicable to such DSR Loans. (b) If at any time the Interest Rate then in effect based on the LIBOR Rate does not adequately and fairly reflect, in the reasonable judgment of any Bank, the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR Loan bearing interest at the LIBOR Rate Loan during any Interest Period, then such Bank shall notify the Agent, who shall so notify the Borrower, and interest on such Bank's proportionate share of the DSR Loans shall for any subsequent Interest Period accrue at the Adjusted Base Rate. (c) If the Borrower so requests after the suspension of a Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate Loans under this Section 2.19 2.17 for at least ten thirty (1030) consecutive Business Days days on at least two separate occasions based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated hereunder, such Bank shall (consistent with legal and regulatory restrictions) comply with Section 2.20 2.18 hereof.

Non-availability. (a) If at any time dollar deposits in the principal amount of any Bank's proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate are not available to such Bank in the London interbank market for the next Interest Period, such Bank shall so notify the Agent, who shall so notify the Borrower, and the obligation of such affected Bank to make or continue continue, or to convert DSR Loans into DSR Loans bearing interest based on the LIBOR Rate shall be immediately suspended and during such suspension be converted into an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base Rate; provided, however, that outstanding DSR Loans bearing interest at the LIBOR Rate shall be converted into DSR Loans bearing interest at the Adjusted Base Rate on the last day of the then current Interest Period applicable to such DSR Loans. (b) If at any time the Interest Rate then in effect based on the LIBOR Rate does not adequately and fairly reflect, in the reasonable judgment of any Bank, the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR Loan bearing interest at the LIBOR Rate during any Interest Period, then such Bank shall notify the Agent, who shall so notify the Borrower, and interest on such Bank's proportionate share of the DSR Loans shall for any subsequent Interest Period accrue at the Adjusted Base Rate. (c) If the Borrower so requests after the suspension of a Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate under this Section 2.19 for at least ten (10) consecutive Business Days based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated contem plated hereunder, such Bank shall (consistent with legal and regulatory restrictions) comply with Section 2.20 hereof.

Non-availability. (a) If at any time United States dollar deposits in the principal amount of any Bank's proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate are not available to such Bank in the London interbank market for the next Interest Period, such Bank shall so notify the Agent, who shall so notify the Borrower, and the obligation of such affected Bank to make or continue continue, or to convert DSR Loans into DSR Loans bearing interest based on the LIBOR Rate shall be immediately suspended and during such suspension shall be converted into an obligation to do the same with respect to DSR make or continue or convert Loans into Loans bearing interest at 19 based on the Adjusted Base Rate; provided, however, that outstanding DSR Loans bearing interest at the LIBOR Rate shall be converted into DSR Loans bearing interest at the Adjusted Base Rate on the last day of the then current Interest Period applicable to such DSR Loans. (b) . If at any time the Interest Rate then in effect based on the LIBOR Rate does not adequately and fairly reflect, in the reasonable judgment of any Bank, the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR Loan bearing interest at the LIBOR Rate during any Interest Period, then such Bank shall notify the Agent, who shall so notify the Borrower, and interest on such Bank's proportionate share of the DSR Loans shall for any subsequent Interest Period accrue at the Adjusted Base Rate. (c) . If the Borrower so requests after the suspension of a Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate under this Section 2.19 for at least ten (10) consecutive Business Days based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated hereunder, such Bank shall (consistent with legal and regulatory restrictions) comply with Section 2.20 hereof.

Non-availability. (ai) If at any time dollar deposits in the principal amount of any Bank's Lender’s proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate are not available to such Bank Lender in the London interbank market for the next Interest Period, such Bank Lender shall so notify the Agent, who shall so notify the Borrower, and the LIBOR basis for such Loan shall be suspended or, at Borrower’s option, the obligation of such affected Bank Lender to make or continue advance or to convert DSR continue its proportionate interest in the Loans into DSR Loans bearing interest based on the LIBOR Rate shall be immediately suspended suspended; provided that if the basis is changed to the Base Rate or the CD Rate, Borrower shall pay any additional costs which such Lender incurred as a result of such change. If Borrower so requests within ten days of notice to Borrower of any such non-availability, Agent shall use reasonable efforts to arrange an assignment of such Lender’s proportionate share of the Loans to an assignee selected by Agent or Borrower (and during if selected by Borrower such suspension be converted into an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base Rate; provided, however, that outstanding DSR Loans bearing interest at the LIBOR Rate assignee shall be converted reasonably acceptable to Agent, taking into DSR Loans bearing interest at account such assignee’s recourse and national limits) subject to the Adjusted Base Rate on the last day provisions of the then current Interest Period applicable Section 2.3(f) hereof, and such assigning Lender hereby consents to any such DSR Loansassignment. (bii) If at any time the Interest Rate then in effect based on either LIBOR or the LIBOR CD Rate does not adequately and fairly reflectserve as an accurate reference, in the reasonable judgment of any BankLender, for such Lender to determine the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR Loan bearing interest at the LIBOR Rate during any Interest Period, then such Bank Lender shall notify the Agent, who shall so notify the Borrower, and interest on such Bank's Lender’s proportionate share of the DSR Loans shall for any subsequent Interest Period accrue at an Interest Rate determined by reference to an alternate basis (LIBOR, CD Rate or Base Rate); provided that if no other Interest Rate serves as an accurate reference for such Lender, then such Lender shall so notify Agent, who shall so notify Borrower, and such Lender’s proportionate share of the Adjusted Loans shall thereafter accrue at the Interest Rate determined by the Base Rate. (c) If the Borrower so requests after the suspension of a Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate under this Section 2.19 for at least ten (10) consecutive Business Days based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated hereunder, such Bank shall (consistent with legal and regulatory restrictions) comply with Section 2.20 hereof.

Non-availability. (ai) If at any time dollar Dollar deposits in the principal amount of any BankLender's proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate Loan are not available to such Bank Lender in the London interbank market for the next Interest Period, such Bank Lender shall so notify the Agent, who shall so notify the Borrower, and the obligation LIBOR Rate basis for such Loan shall be suspended, and such Lender's proportionate share of such affected Bank to make or continue or to convert DSR Loans into DSR Loans bearing interest based on the LIBOR Rate Loans shall thereafter be immediately suspended and during Reference Rate Loans. If the Borrower so requests within ten days of notice to the Borrower of any such suspension be converted into non-availability, the Agent shall use reasonable efforts to arrange an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base Rate; provided, however, that outstanding DSR Loans bearing interest at the LIBOR Rate shall be converted into DSR Loans bearing interest at the Adjusted Base Rate on the last day assignment of such Lender's proportionate share of the then current Interest Period applicable Commitment to an assignee selected by the Agent or the Borrower (and reasonably acceptable to each of them) subject to the provisions of Section 2.19(e) hereof, and such DSR Loansassigning Lender hereby consents to any such assignment. (bii) If at any time the Interest Rate interest rate then in effect based on the LIBOR Rate does not adequately and fairly reflectserve as an accurate reference, in the reasonable judgment of any BankLender, for such Lender to determine the cost for such Bank of advancing or maintaining its respective proportionate interest share in any DSR Loan bearing interest at the LIBOR Rate Loan during any Interest Period, then such Bank Lender shall notify the Agent, who shall so notify the Borrower, and interest on such BankLender's proportionate share of the DSR LIBOR Rate Loans shall for any subsequent Interest Period thereafter accrue at an interest rate determined by reference to an alternate basis; PROVIDED, that if no other interest rate serves as an accurate reference for such Lender, then such Lender shall so notify the Adjusted Base Rate. (c) Agent, who shall so notify the Borrower, and such Lender's proportionate share of the LIBOR Rate Loans shall thereafter be Reference Rated Loans. If the Borrower so requests after within ten days of notice to the suspension Borrower pursuant to this Section 2.19(d)(ii), the Agent shall use reasonable efforts to arrange an assignment of such Lender's proportionate share of the Commitment, to an assignee selected by the Agent or the Borrower (and reasonably acceptable to each of them) subject to the provisions of Section 2.19(e) hereof, and such assigning Lender hereby consents to any such assignment. (iii) If any conversion pursuant to this Section 2.19(d) is made on a Bank's obligation day that is not the Interest Period End Date for a complete Interest Period with respect to such LIBOR Rate Loans, the Loan Parties shall pay to the Lender such amount or amounts as may be necessary to compensate such Lender for any loss or expense sustained or incurred by such Lender in respect of its LIBOR Rate Loans as a result of such conversion, including but not limited to any interest or fees payable by the Lender to lenders of funds obtained by it in order to make DSR Loans bearing interest at or maintain the LIBOR Rate under this Section 2.19 Loans hereunder. A certificate as to any additional amounts payable pursuant to the foregoing sentence submitted by the Lender to the Borrower shall be conclusive and binding for at least ten (10) consecutive Business Days based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated hereunderall purposes, such Bank shall (consistent with legal and regulatory restrictions) comply with Section 2.20 hereofabsent manifest error.

Non-availability. (a) If at any time dollar deposits in the principal amount of any Bank's proportionate interest in, or obligation under, any DSR Loan bearing interest at the LIBOR Rate are not available to such Bank in the London interbank market for the next Interest Period, such Bank shall so notify the Agent, who shall so notify the Borrower, and the obligation of such affected Bank to make or continue or to convert DSR Loans into DSR Loans bearing interest based on the LIBOR Rate shall be immediately suspended and during such suspension be converted into an obligation to do the same with respect to DSR Loans bearing interest at the Adjusted Base Rate; provided, however, that outstanding DSR Loans bearing interest at the LIBOR Rate shall be converted into DSR Loans bearing interest at the Adjusted Base Rate on the last day of the then current Interest Period applicable to such DSR Loans. (b) If at any time the Interest Rate interest rate then in effect based on the LIBOR Rate does not adequately and fairly reflect, in the reasonable judgment of any Bank, the cost for such Bank of advancing or maintaining its respective proportionate interest in any DSR Loan bearing interest at the LIBOR Rate during any Interest Period, then such Bank shall notify the Agent, who shall so notify the Borrower, and interest on such Bank's proportionate share of the DSR Loans shall for any subsequent Interest Period accrue at the Adjusted Base Rate. (c) If the Borrower so requests after the suspension of a Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate under this Section 2.19 for at least ten (10) consecutive Business Days based on circumstances not generally applicable to United States or foreign lenders making loans of the types contemplated hereunder, such Bank shall (consistent with legal and regulatory restrictions) comply with Section 2.20 hereof.