Common use of Non-availability Clause in Contracts

Non-availability. (a) If and whenever, at any time prior to the commencement of any Interest Period, the Bank shall have determined any of the following facts (which determination in the absence of manifest error shall be conclusive): (i) that adequate and fair means do not exist for ascertaining LIBOR during such Interest Period; or (ii) that deposits in Dollars are not available to the Bank in the London Interbank Market in the ordinary course of business in sufficient amounts it is impracticable for the 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. the Bank shall forthwith give notice (a “Determination Notice”) thereof to the Borrower. A Determination Notice shall contain particulars of the relevant circumstances giving rise to its issue. After the giving of any Determination Notice the undrawn amount of the Commitment shall not be borrowed until notice to the contrary is given to the Borrower by the Bank. (b) During the period of 30 days after any Determination Notice has been given by the 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 accordance with its terms from the date specified in the Determination Notice until such time as the Bank notifies the Borrower that none of the circumstances specified in Sub-clause 8.6. (a) continues to exist whereupon the normal interest rate fixing provisions of the Agreement shall apply. (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 and the Bank fail to agree on such Substitute Basis within such thirty (30) day period and such circumstances are continuing at the 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 Clause 8.6 (c) shall be repeated. If the Borrower shall not agree with such rate then the Borrower may give not less than fifteen (15) Business Days irrevocable notice of prepayment to the Bank in which case the commitment hereunder of the Bank shall 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 the terms of this Agreement and the obligations of the Bank shall thereupon terminate.

Non-availability. (a) If and whenever, at any time prior to the commencement of any Interest Period, the Bank shall have determined any of the following facts (which determination in the absence of manifest error shall be conclusive): (i) that adequate and fair means do not exist for ascertaining LIBOR during such Interest Period; or (ii) that deposits in Dollars are not available to the Bank in the London Interbank InterBank Market in the ordinary course of business in sufficient amounts or it is impracticable for the 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. the Bank shall forthwith give notice (a “"Determination Notice”") thereof to the Borrower. A Determination Notice shall contain particulars of the relevant circumstances giving rise to its this issue. After the giving of any Determination Notice the undrawn amount of the Commitment Loan shall not be borrowed until notice to the contrary is given to the Borrower by the Bank. (b) During the period of 30 days Banking Days after any Determination Notice has been given by the 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 accordance with its terms from the date specified in the Determination Notice until such time as the Bank notifies the Borrower that none of the circumstances specified in Sub-clause 8.6. (a) continues to exist whereupon the normal interest rate fixing provisions of the Agreement shall apply. (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 and the Bank fail fails to agree on such Substitute Basis within such thirty (30) day period and such circumstances are continuing at the 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 Clause 8.6 (c) shall be repeated. If the Borrower shall not agree with such rate then the Borrower may give not less than fifteen (15) Business Days irrevocable notice of prepayment to the Bank in which case the commitment hereunder of the Bank shall 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 the terms of this Agreement and the obligations of the Bank shall thereupon terminate.

Non-availability. (a) If and whenever, at any time prior to the commencement of any Interest Period, the Bank shall have determined any of the following facts (which determination in the absence of manifest error shall be conclusive): (i) that adequate and fair means do not exist for ascertaining LIBOR during such Interest Period; or (ii) that deposits in Dollars are not available to the Bank in the London Interbank InterBank Market in the ordinary course of business in sufficient amounts or it is impracticable for the 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. the Bank shall forthwith give notice (a “Determination Notice”) thereof to the Borrower. A Determination Notice shall contain particulars of the relevant circumstances giving rise to its this issue. After the giving of any Determination Notice the undrawn amount of the Commitment Loan shall not be borrowed until notice to the contrary is given to the Borrower by the Bank. (b) During the period of 30 days Banking Days after any Determination Notice has been given by the 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 accordance with its terms from the date specified in the Determination Notice until such time as the Bank notifies the Borrower that none of the circumstances specified in Sub-clause 8.6. (a) continues to exist whereupon the normal interest rate fixing provisions of the Agreement shall apply. (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 and the Bank fail fails to agree on such Substitute Basis within such thirty (30) day period and such circumstances are continuing at the 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 Clause 8.6 (c) shall be repeated. If the Borrower shall not agree with such rate then the Borrower may give not less than fifteen (15) Business Days irrevocable notice of prepayment to the Bank in which case the commitment hereunder of the Bank shall 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 the terms of this Agreement and the obligations of the Bank shall thereupon terminate.

Non-availability. (ai) If and whenever, at any time prior the Agent in good faith determines that deposits are not available in the London interbank market for the next Interest Period, Agent shall so notify Borrower, and the LIBOR basis for such Loans shall be suspended, and interest on such Loans for any subsequent Interest Periods shall accrue at the Base Rate plus the Base Rate Margin, until such time as such condition no longer exists. (ii) If at any time the Majority Lenders in good faith determine that the Interest Rate then in effect based on LIBOR does not serve as an accurate reference to determine the commencement cost of advancing or maintaining the Loans on a LIBOR basis during any Interest Period, then the Bank Majority Lenders shall have determined notify Agent, who shall so notify Borrower, and interest on such Loans shall for any of subsequent Interest Period accrue at the following facts (which determination in Base Rate plus the absence of manifest error shall be conclusive): (i) that adequate and fair means do not exist for ascertaining LIBOR during such Interest Period; or (ii) that deposits in Dollars are not available to the Bank in the London Interbank Market in the ordinary course of business in sufficient amounts it is impracticable for the Bank to fund or to continue to fund the Loan in DollarsBase Rate Margin. (iii) Notwithstanding any other provision of this Agreement, in the event that it becomes unlawful for any Lender to honor its obligation to make or maintain Loans on a LIBOR for that Interest Period will not adequately reflect basis hereunder, then such Lender shall promptly notify the cost of funding the Loan for that Interest Period. the Bank shall forthwith give notice Borrower thereof (with a “Determination Notice”) thereof copy to the Borrower. A Determination Notice shall contain particulars of the relevant circumstances giving rise Agent) and such Lender's obligation to its issue. After the giving of any Determination Notice the undrawn amount of the Commitment shall not be borrowed until notice to the contrary is given to the Borrower by the Bank. (b) During the period of 30 days after any Determination Notice has been given by the Bank under Clause 8.6.(a), the Bank shall certify an alternative make or continue Loans on a LIBOR 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 suspended, and such Lender shall take effect in accordance with its terms from the date specified in the Determination Notice make or continue Loans for any subsequent Interest Periods on a Base Rate basis, until such time as the Bank notifies the Borrower that none of the circumstances specified in Sub-clause 8.6such Lender may again make and maintain Loans on a LIBOR basis. (a) continues to exist whereupon the normal interest rate fixing provisions of the Agreement shall apply. (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 and the Bank fail to agree on such Substitute Basis within such thirty (30) day period and such circumstances are continuing at the 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 Clause 8.6 (c) shall be repeated. If the Borrower shall not agree with such rate then the Borrower may give not less than fifteen (15) Business Days irrevocable notice of prepayment to the Bank in which case the commitment hereunder of the Bank shall 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 the terms of this Agreement and the obligations of the Bank shall thereupon terminate.