Common use of Substitute Basis Clause in Contracts

Substitute Basis. (A) If, in relation to an Advance: (1) the Agent determines that at or about 11:00 a.m. on the Interest Determination Date for the relevant term in respect of such Advance (a) none or only one of the Reference Banks was being offered by prime banks in the Interbank Market deposits in the relevant currency for the proposed duration of such term or (b) by reason of circumstances affecting the Interbank Market generally such deposits are not available to banks in such market; or (2) before the close of business in Luxembourg on the Interest Determination Date for such term the Agent has been notified in writing by each Bank of a group of Banks to whom in aggregate thirty-five per cent. or more of the Original Currency Amount of the Loan is (or, if such Advance were then made, would be) owed that the Interbank Rate as determined by the Agent does not reflect its cost of obtaining such deposits; then the Agent shall as soon as practicable give notice of such determination to the Borrower and each Bank. (B) If the Agent gives notice pursuant to paragraph (A) (1) then if such notice is given with respect to an Advance to be made, such Advance shall not be made and in any case the Agent shall negotiate with the Borrower with a view to agreeing an alternative basis (whether an alternative method of fixing the rate of interest or (in the case of Advances to be made) an alternative term or an alternative currency) for such Advance. Any alternative basis agreed in writing within 30 days of the Agent's notification of the event in question by the Agent (with the consent of all the Banks) and the Borrower shall take effect in accordance with its terms and the Borrower may make further requests for the making of Advances on such alternative basis (subject as herein provided) whilst the circumstances referred to under paragraph (A) (1) continue to exist. After the Agent has determined that the circumstances referred to under paragraph (A) (1) have ceased to exist, the rate of interest in respect of subsequent Advances or (as the case may be) subsequent Interest Periods shall be the Interbank Rate plus the Margin calculated in accordance with the provisions of this Agreement. (C) If the Agent gives notice pursuant to paragraph (A) (2), the Advance shall be made and the Agent shall then negotiate with the Borrower with a view to agreeing an alternative basis for fixing the rate of interest payable on the relevant Advance. Any alternative basis agreed in writing within 10 days of the Agent's notification of the event in question by the Agent (with the consent of all the Banks) and the Borrower shall take effect in accordance with its terms and the Borrower may make further requests for the making of Advances on such alternative basis (subject as herein provided) whilst the circumstances referred to under paragraph (A) (2) continue to exist, provided that if such alternative basis is not agreed, each Bank's share of the relevant Advance(s) shall bear interest at the rate per annum determined by the Agent as being the sum of (i) the cost to such Bank (as certified to the Agent with a copy to the Borrower) of funding its share of such Advance from whatever sources it may, in the ordinary course of its business, reasonably select (expressed as a rate per annum) and (ii) the Margin. After the Agent has determined that the circumstances referred to under paragraph (A) (2) have ceased to exist, the rate of interest in respect of subsequent Advances shall be the Interbank Rate plus the Margin calculated in accordance with the provisions of this Agreement.

Substitute Basis. (A) If, in relation to an Advance7.01 If any of the following should occur: (1a) the Reference Banks determine and notify the Agent determines that that, at or about 11:00 a.m. (London time) on the Interest Determination Date for an Interest Period, no Deutsche Mark deposits (as to the relevant term portion of the Loan propose▇ ▇▇ be denominated in respect of such Advance Deutsche Mark) or no U.S. Dollar deposits (aas to the portion ▇▇ the proposed Loan to be denominated in U.S. Dollars) none or only one of in the required amount for the required Interest Period are being offered to the Reference Banks was being offered by prime banks in the Interbank Market deposits in the relevant London interbank Euro-currency for the proposed duration of such term or market; (b) by reason of circumstances affecting the Interbank Market generally such deposits are not available to banks in such market; or (2) before the close of business in Luxembourg on the Interest Determination Date for such term an Interest Period, the Majority Banks determine and notify the Agent has been notified in writing by each Bank of a group of Banks to whom in aggregate thirty-five per cent. or more of the Original Currency Amount of the Loan is (or, if such Advance were then made, would be) owed that the Interbank Rate as determined by the Agent rate at which such deposits were being so offered does not accurately reflect its the cost to them of obtaining such deposits; then or (c) the Reference Banks shall determine and notify the Agent that, by reason of circumstances affecting the London interbank Euro-currency market generally, such deposits are not available to banks in such market or that adequate and reasonable means do not or will not exist for ascertaining the interest rate applicable to the next succeeding Interest Period; then, notwithstanding the provisions of ARTICLES 5 and 6, the Agent shall as soon as practicable forthwith give notice of any such determination event to the Borrower and each Bank. 7.02 With respect to the circumstances described in SECTIONS 7.01(A) or 7.01(B) above, the Borrower may, subject to the rights of the Agent and the Banks pursuant to SECTION 2.06(E): (Ba) elect to prepay the applicable portion of the Loan, without premium or penalty, at the end of the then current Interest Period; or (b) select an alternative Interest Period, to the extent available as determined by the Reference Banks 2 (two) Business Days prior to the first day of the next succeeding Interest Period, during which Interest Period the applicable interest rate for the applicable portion of the Loan shall be the Interbank Rate, if available for such alternative Interest Period, plus the applicable Margin; or (c) request that the Agent, on behalf of the Banks, enter into negotiations regarding the applicable interest rate, in which event the Interest Period for the applicable portion of the Loan shall be one month and during such Interest Period the Agent, on behalf of the Banks, and the Borrower shall negotiate in good faith to agree upon an interest rate that will adequately reflect the cost to the Banks of maintaining or funding the applicable portion of the Loan for such Interest Period, and if the Borrower and the Majority Banks (662/3%) are able to agree on such interest rate, the interest rate that shall apply to the applicable portion of the Loan for such Interest Period shall be the sum of the applicable Margin and the interest rate so agreed. If the Agent gives notice pursuant Borrower and the Agent, on behalf of the Banks, are unable to paragraph agree upon an interest rate by the day which is 2 (Atwo) Business Days before the end of the one-month Interest Period referred to above, the interest rate that shall apply to the Loan for such Interest Period shall be (1i) then if such notice is given with respect to an Advance to be made, such Advance shall not be made and in any case the Agent shall negotiate with the Borrower with a view to agreeing an alternative basis (whether an alternative method of fixing the rate of interest or (in the case of Advances to be made) an alternative term or an alternative currency) for such Advance. Any alternative basis agreed in writing within 30 days of the Agent's notification of the event in question determined by the Agent to be the arithmetic mean (rounded upwards, if necessary, to the nearest four decimal places) per annum of the respective rates notified to the Agent by each Reference Bank as that which expresses as a percentage rate per annum the cost to such Reference Bank of obtaining such deposits from such sources as it may select having reasonable regard to the interests of the Borrower, plus (ii) the applicable Margin. 7.03 With respect to circumstances described in SECTION 7.01(C) above, the duration of such next succeeding Interest Period shall be one month or, if the period until the next Repayment Date is less than one month, shall end on the next Repayment Date and, during such Interest Period, the Borrower and the Agent, on behalf of the Banks and subject to the consent of the Majority Banks (662/3%), shall negotiate in good faith in order to redenominate the applicable portion of the Loan in an alternative currency which is freely convertible into Deutsche Mark (which alternative currency may include, without limit▇▇▇▇n, Deutsche Mark as to the portion of the Loan proposed to be denominated in U.▇. Dollars) and in which deposits are available to the Reference Banks for determining the interest rate from time to time applicable thereto (but excluding any such currency for which any central bank or other governmental authorization in the country of issue is required to permit use of such currency by a Bank for lending hereunder, if such authori zation has not been obtained and any currency the use of which as contemplated hereunder is restricted or prohibited pursuant to any request, directive, regulation or guideline of any governmental authority (whether or not having the force of law) with which any Bank is accustomed to act), and the interest rate that shall apply to the applicable portion of the Loan for such Interest Period shall be the sum of the applicable Margin and the interest rate for the alternative currency so agreed. If the Borrower and the Agent, on behalf of the Banks and with the consent of all the BanksMajority Banks (662/3%), are unable to agree on such alternative currency or an interest rate for such alternative currency by the day which is 2 (two) and Business Days before the end of the Interest Period referred to above, the Borrower shall take effect in accordance with its terms and repay the Borrower may make further requests for the making of Advances on such alternative basis (subject as herein provided) whilst the circumstances referred to under paragraph (A) (1) continue to exist. After the Agent has determined that the circumstances referred to under paragraph (A) (1) have ceased to exist, the rate of interest in respect of subsequent Advances or (as the case may be) subsequent Interest Periods shall be the Interbank Rate plus the Margin calculated in accordance with the provisions of this Agreement. (C) If the Agent gives notice pursuant to paragraph (A) (2), the Advance shall be made and the Agent shall then negotiate with the Borrower with a view to agreeing an alternative basis for fixing the rate of interest payable on the relevant Advance. Any alternative basis agreed in writing within 10 days applicable portion of the Agent's notification of the event in question by the Agent (Loan together with the consent of all the Banks) and the Borrower shall take effect in accordance with its terms and the Borrower may make further requests for the making of Advances on such alternative basis (subject as herein provided) whilst the circumstances referred to under paragraph (A) (2) continue to exist, provided that if such alternative basis is not agreed, each Bank's share of the relevant Advance(s) shall bear accrued interest thereon at the rate per annum determined by the Agent to be the arithmetic mean (rounded upwards, if necessary to the nearest four decimal places) of the respective rates notified to the Agent by each Reference Bank as being the sum of (i) that which expresses as a percentage rate per annum the cost to such Reference Bank (of obtaining such deposits from such sources as certified it may select having reasonable regard to the interests of the Borrower, plus the applicable Margin, on the next Interest Payment Date, without premium or penalty except as otherwise provided in SECTION 12.04. 7.04 During the period when any alternative interest rate or Interest Period or redenomination of the Loan or any applicable portion thereof is in force pursuant to SECTION 7.02 or 7.03 above, the Agent, in consultation with the Banks, shall periodically review whether circumstances are such that an Interbank Rate may again be determined in accordance with ARTICLES 5 and 6. If such a determination may again be made, the Agent with a copy shall forthwith give written notice thereof to the Borrower) of funding its share of such Advance from whatever sources it mayBorrower and each Bank and the Interbank Rate, in plus the ordinary course of its businessapplicable Margin, reasonably select (expressed as a rate per annum) and (ii) the Margin. After the Agent has determined that the circumstances referred to under paragraph (A) (2) have ceased to exist, the rate of interest in respect of subsequent Advances shall be the Interbank Rate plus the Margin calculated in accordance applicable interest rate commencing with the provisions beginning of this Agreementthe next Interest Period for the Loan or the applicable portion thereof.