Common use of Inability to Determine LIBOR Clause in Contracts

Inability to Determine LIBOR. If prior to the commencement of any Interest Period for a LIBO Loan: (a) the Senior Facility Agent reasonably determines that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Facility Agent is advised by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Senior Lenders of making or maintaining their LIBO Loans for such Interest Period; then the Senior Facility Agent shall give notice thereof to the Borrower and the Senior Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Facility Agent notifies the Borrower and the Senior Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Loan to, or continuation of any Loan as, a LIBO Loan shall be ineffective and such Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Notice requests a LIBO Loan, such Loan shall be made as a Base Rate Loan, or, at the election of the Borrower (upon receipt of the determination to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such Loans.

Inability to Determine LIBOR. If prior to the commencement of any Interest Period for a LIBO Loan: (a) the Senior Commercial Banks Facility Agent reasonably determines that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Commercial Banks Facility Agent is advised by the Required Senior Lenders Banks that such Required Senior Lenders Banks have reasonably determined that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Senior Commercial Bank Lenders of making or maintaining their LIBO Loans for such Interest Period; then the Senior Commercial Banks Facility Agent shall give notice thereof to the Borrower and the Senior Commercial Bank Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Commercial Banks Facility Agent notifies the Borrower and the Senior Commercial Bank Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Commercial Bank Loan to, or continuation of any Commercial Bank Loan as, a LIBO Loan shall be ineffective and such Commercial Bank Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Notice requests a LIBO Loan, such Commercial Bank Loan shall be made as a Base Rate Loan, or, at the election of the Borrower (upon receipt of the determination to be made by the Required Senior Lenders Banks and only if they are able to agree on such a determination), made as a Commercial Bank Loan bearing interest at such rate as the Required Senior Lenders Banks shall determine adequately reflects the costs to the Senior Commercial Bank Lenders of making such Commercial Bank Loans.

Inability to Determine LIBOR. If prior to the commencement of any Interest Period for a LIBO LIBOR Loan: (a) the Senior Credit Facility Agent reasonably determines that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Credit Facility Agent is advised by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Senior Lenders of making or maintaining their LIBO LIBOR Loans for such Interest Period; then the Senior Credit Facility Agent shall give notice thereof to the Borrower and the Senior Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Credit Facility Agent notifies the Borrower and the Senior Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practicalpracticable), (i) any Interest Period Notice that requests the conversion of any Loan to, or continuation of any Loan as, a LIBO LIBOR Loan shall be ineffective and such Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Notice Disbursement Request requests a LIBO LIBOR Loan, such Loan shall be made as a Base Rate Loan, or, at the election of the Borrower (upon receipt of the determination to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such Loans. The Credit Facility Agent shall promptly give notice to the Borrower, the Lenders and the Intercreditor Agent when the circumstances that gave rise to such notice no longer exist and, in such event, any outstanding Base Rate Loans may be converted, on the last day of the then current Interest Period, to LIBOR Loans.

Inability to Determine LIBOR. If prior to the commencement of any Interest Period for a LIBO LIBOR Loan: (a) the Senior Working Capital Facility Agent reasonably determines that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Working Capital Facility Agent is advised by the Required Senior Working Capital Lenders that such Required Senior Working Capital Lenders have reasonably determined that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Senior Working Capital Lenders of making or maintaining their LIBO LIBOR Loans for such Interest Period; then the Senior Working Capital Facility Agent shall give notice thereof to the Borrower and the Senior Working Capital Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Working Capital Facility Agent notifies the Borrower and the Senior Working Capital Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practicalpracticable), (i) any Interest Period Notice that requests the conversion of any Working Capital Loan to, or continuation of any Working Capital Loan as, a LIBO LIBOR Loan shall be ineffective and such Working Capital Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Notice Working Capital Disbursement Request requests a LIBO LIBOR Loan, such Working Capital Loan shall be made as a Base Rate Loan, or, at the election of the Borrower (upon receipt of the determination to be made by the Required Senior Working Capital Lenders and only if they are able to agree on such a determination), made as a Working Capital Loan bearing interest at such rate as the Required Senior Working Capital Lenders shall determine adequately reflects the costs to the Senior Working Capital Lenders of making such Loans. The Working Capital Facility Agent shall promptly give notice to the Borrower, the Working Capital Lenders and the Intercreditor Agent when the circumstances that gave rise to such notice no longer exist and, in such event, any outstanding Base Rate Loans may be converted, on the last day of the then current Interest Period, to LIBOR Loans.

Inability to Determine LIBOR. If prior to the commencement of any Interest Period for a LIBO Loan: (a) the Senior Term Loan Facility Agent reasonably determines that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Term Loan Facility Agent is advised by the Required Senior Term Lenders that such Required Senior Term Lenders have reasonably determined that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Senior Term Lenders of making or maintaining their LIBO Loans for such Interest Period; then the Senior Term Loan Facility Agent shall give notice thereof to the Borrower and the Senior Term Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Term Loan Facility Agent notifies the Borrower and the Senior Term Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practicalpracticable), (i) any Interest Period Notice that requests the conversion of any Term Loan to, or continuation of any Term Loan as, a LIBO Loan shall be ineffective and such Term Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Notice Disbursement Request requests a LIBO Loan, such Term Loan shall be made as a Base Rate Loan, or, at the election of the Borrower (upon receipt of the determination to be made by the Required Senior Term Lenders and only if they are able to agree on such a determination), made as a Term Loan bearing interest at such rate as the Required Senior Term Lenders shall determine adequately reflects the costs to the Senior Term Lenders of making such Term Loans. The Term Loan Facility Agent shall promptly give notice to the Borrower, the Term Lenders and the Intercreditor Agent when the circumstances that gave rise to such notice no longer exist and, in such event, any outstanding Base Rate Loans may be converted, on the last day of the then current Interest Period, to LIBO Loans.

Inability to Determine LIBOR. If and whenever the Bank or, in respect of clauses (a) and (c) below, any Special Participant shall, in good faith, have determined (which determination shall be conclusive absent manifest error): (a) at any time prior to the commencement of any Interest Period that the Bank or such Special Participant is unable to obtain deposits on the London inter-bank market at the rate of LIBOR for a LIBO Loan: the applicable amount and Interest Period of any requested Advance, or (ab) by reason of changes affecting the Senior Facility Agent reasonably determines that relevant market due to circumstances beyond the Bank’s control, adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Facility Agent is advised by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such applicable amount and Interest Period with respect to any requested Advance, or (c) LIBOR will not adequately and fairly reflect the cost to the Bank or such Senior Lenders Special Participant of making funding or maintaining their LIBO Loans an Advance (or its participation therein) in the amount and for such Interest Period; then the Senior Facility Agent shall give notice thereof to the Borrower and the Senior Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Facility Agent notifies the Borrower and the Senior Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Loan to, or continuation of any Loan as, a LIBO Loan shall be ineffective and such Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, the Bank shall be entitled to give notice (a “Determination Notice”) of such event to the Company (a Determination Notice to contain particulars of the relevant circumstances giving rise to its issue) and, notwithstanding the provisions of clause 1.1.105 above, and until such notice has been withdrawn by the Bank, which withdrawal shall be given promptly by the Bank when such relevant circumstances giving rise to the Notice of Determination are no longer applicable, (i) the Commitment of the Bank to make Advances accruing interest at LIBOR shall be suspended, (ii) if each new Advance shall bear interest at the Reference Rate, plus the Fixed Addition, plus the Margin, and (iii) in the event of a determination under subclause (c) of this clause 4 above, each outstanding Advance shall bear interest at the Reference Rate, plus the Fixed Addition, plus the Margin for the remainder of such Interest Period, and the Reference Rate shall be binding upon the Company and take effect in accordance with its terms from the commencement, or, as applicable, for the remainder of the relevant Interest Period, as applicable, unless the Company shall have elected to prepay all such outstanding Advances pursuant to clause 5.2 below in respect of the period from the date of the Determination Notice until the date of actual prepayment of the Unpaid Balance of the Credit, together with any Borrowing Notice requests applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a LIBO LoanRequest for Disbursement has previously been given that it elects under such circumstances not to borrow on such date (it being understood that the Company will pay the Bank any applicable Breakage Costs), such Loan borrowing shall instead be made as a Base Rate Loan, or, an Advance accruing interest for each day at the election of Reference Rate, plus the Borrower (upon receipt of Fixed Addition, plus the determination to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such LoansMargin.

Inability to Determine LIBOR. If prior to In the commencement of event that the Agent Bank shall ---------------------------- have determined in good faith (which determination shall be final and conclusive and binding upon the Borrower), on any Interest Period for a LIBO Loan: (a) Rate Determination Date or Funding Date with respect to any LIBOR Loans, that by reason of circumstances occurring after the Senior Facility Agent reasonably determines that date of this Loan Agreement affecting the London interbank market, adequate and reasonable fair means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Facility Agent is advised by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such Interest Period will not adequately and fairly reflect the cost interest rate applicable to such Senior Lenders LIBOR Loans on the basis provided for in the definition of making or maintaining their LIBO Loans for LIBOR, the Agent Bank shall on such Interest Period; then the Senior Facility Agent shall date give notice thereof (by telecopy or by telephone confirmed in writing) to the Borrower and the Senior Lenders by telephone Banks of such determination, whereupon (i) no Revolving Credit Loans may be made as, or telecopy converted to, LIBOR Loans until such time as promptly as practicable thereafter and, until the Senior Facility Agent Bank notifies the Borrower and the Senior Lenders Banks that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Loan to, or continuation of any Loan as, a LIBO Loan shall be ineffective and such Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, exist; and (ii) if any Borrowing Request for Revolving Credit Loan or Notice requests a LIBO Loan, of Conversion/Continuation given by the Borrower with respect to the Revolving Credit Loans in respect of which such Loan determination was made shall be deemed to be rescinded by the Borrower, and any Request for Revolving Credit Loan or Notice of Conversion/Continuation given by the Borrower with respect to the Revolving Credit Loans in respect of which such determination was made as shall be deemed to be a request to make Base Rate Loan, or, at the election of the Borrower (upon receipt of the determination to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such Loans.

Inability to Determine LIBOR. If In the event, prior to the commencement of any Interest Period for relating to a LIBO LIBOR Loan: (a) , the Senior Facility Administrative Agent reasonably determines shall determine that adequate and reasonable means methods do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Facility Agent is advised by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Senior Lenders of making or maintaining their LIBO Loans for such Interest Period; then the Senior Facility LIBOR, Administrative Agent shall give promptly provide notice thereof of such determination to the Borrower and the Senior Lenders by telephone or telecopy as promptly as practicable thereafter and, (which shall be conclusive and binding on Borrower). In such event and until the Senior Facility Administrative Agent notifies the Borrower and the Senior Lenders that the circumstances giving rise to such notice no longer exist exist: (which notice of subsequent change in circumstances shall be given as promptly as practical), (i1) any Interest Period Notice that requests the request for a LIBOR Loan or for a conversion of any Loan to, to or continuation of any Loan as, a LIBO LIBOR Loan shall be ineffective automatically withdrawn and such Loan shall be converted to deemed a request for a Base Rate Loan, (2) each LIBOR Loan will automatically, on the last day of the then current Interest Period applicable relating thereto, become a Base Rate Loan and (3) the obligations of such Lender to make LIBOR Loans shall be suspended. If at any time Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in the first sentence of this Section 2.16(a) have arisen and such circumstances are unlikely to be temporary or (ii) if any Borrowing Notice requests the circumstances set forth in the first sentence of this Section 2.16(a) have not arisen but ICE Benchmark Administration (or other administrator of LIBOR) has made a LIBO Loanpublic statement identifying a specific date after which LIBOR shall no longer be quoted or used for determining interest rates for loans, then Administrative Agent and Borrower shall endeavor to establish an alternate rate of interest to LIBOR that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 11.1, such Loan amendment shall be made become effective without any further action or consent of any other party to this Agreement so long as a Base Rate LoanAdministrative Agent shall not have received, or, at the election within five Business Days of the Borrower (upon receipt date notice of the determination such alternate rate of interest is provided to be made by Lenders, a written notice from the Required Senior Lenders and only if they are able stating that such Required Lenders object to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such Loansamendment.

Inability to Determine LIBOR. If and whenever the Bank or, in respect of clauses (a) and (c) below, any Special Participant shall, in good faith, have determined (which determination shall be conclusive absent manifest error): (a) at any time prior to the commencement of any Interest Period that the Bank or such Special Participant is unable to obtain deposits on the London inter-bank market at the rate of LIBOR for a LIBO Loan: the applicable amount and Interest Period of any requested Advance, or (ab) by reason of changes affecting the Senior Facility Agent reasonably determines that relevant market due to circumstances beyond the Bank’s control, adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Facility Agent is advised by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such applicable amount and Interest Period with respect to any requested Advance, or (c) LIBOR will not adequately and fairly reflect the cost to the Bank or such Senior Lenders Special Participant of making funding or maintaining their LIBO Loans an Advance (or its participation therein) in the amount and for such Interest Period; then the Senior Facility Agent shall give notice thereof to the Borrower and the Senior Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Facility Agent notifies the Borrower and the Senior Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Loan to, or continuation of any Loan as, a LIBO Loan shall be ineffective and such Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, the Bank shall be entitled to give notice (a “Determination Notice”) of such event to the Company (a Determination Notice to contain particulars of the relevant circumstances giving rise to its issue) and, notwithstanding the provisions of clause 1.1.103 above, and until such notice has been withdrawn by the Bank, which withdrawal shall be given promptly by the Bank when such relevant circumstances giving rise to the Notice of Determination are no longer applicable, (i) the Commitment of the Bank to make Advances accruing interest at LIBOR shall be suspended, (ii) if each new Advance shall bear interest at the Reference Rate, plus the Fixed Addition, plus the Margin, and (iii) in the event of a determination under subclause (c) of this clause 4 above, each outstanding Advance shall bear interest at the Reference Rate, plus the Fixed Addition, plus the Margin for the remainder of such Interest Period, and the Reference Rate shall be binding upon the Company and take effect in accordance with its terms from the commencement, or, as applicable, for the remainder of the relevant Interest Period, as applicable, unless the Company shall have elected to prepay all such outstanding Advances pursuant to clause 5.2 below in respect of the period from the date of the Determination Notice until the date of actual prepayment of the Unpaid Balance of the Credit, together with any Borrowing Notice requests applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a LIBO LoanRequest for Disbursement has previously been given that it elects under such circumstances not to borrow on such date (it being understood that the Company will pay the Bank any applicable Breakage Costs), such Loan borrowing shall instead be made as a Base Rate Loan, or, an Advance accruing interest for each day at the election of Reference Rate, plus the Borrower (upon receipt of Fixed Addition, plus the determination to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such LoansMargin.

Inability to Determine LIBOR. If prior to the commencement of any Interest Period for a LIBO Loan: (a) the Senior Facility Term Loan A Administrative Agent reasonably determines that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Facility Term Loan A Administrative Agent is advised by the Required Senior Lenders Banks that such Required Senior Lenders Banks have reasonably determined that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Senior Construction/Term Loan Lenders of making or maintaining their LIBO Loans for such Interest Period; then the Senior Facility Term Loan A Administrative Agent shall give notice thereof to the Borrower and the Senior Construction/Term Loan Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Facility Term Loan A Administrative Agent notifies the Borrower and the Senior Construction/Term Loan Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Construction/Term Loan to, or continuation of any Construction/Term Loan as, a LIBO Loan shall be ineffective and such Construction/Term Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Notice requests a LIBO Loan, such Construction/Term Loan shall be made as a Base Rate Loan, or, at the election of the Borrower (upon receipt of the determination to be made by the Required Senior Lenders Banks and only if they are able to agree on such a determination), made as a Construction/Term Loan bearing interest at such rate as the Required Senior Lenders Banks shall determine adequately reflects the costs to the Senior Construction/Term Loan Lenders of making such Construction/Term Loans.

Inability to Determine LIBOR. If prior to In the commencement event that on the date for determining LIBOR in respect of any Interest the LIBOR Rate Period for a LIBO Loan: any LIBOR Rate Advance, or for determining the Daily LIBOR Rate for any Loan Rate Advance, as applicable, Agent shall determine (awhich determination shall be conclusive in the absence of manifest error) that, by reason of circumstances affecting the Senior Facility Agent reasonably determines that London interbank market, adequate and reasonable fair means do not exist for ascertaining LIBOR for such Interest LIBOR Rate Period; or (b) , or the Senior Facility Agent is advised by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that Daily LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Senior Lenders of making or maintaining their LIBO Loans for such Interest Period; then the Senior Facility Loan Rate Advance, as applicable, Agent shall promptly give to Borrower telephonic notice thereof to the Borrower and the Senior Lenders by telephone or telecopy (confirmed as promptly soon as practicable thereafter and, until in writing) of the Senior Facility Agent notifies the Borrower nature and the Senior Lenders that the circumstances giving rise to effect of such circumstances. After receipt of such notice no longer exist (which notice and during the existence of subsequent change in circumstances shall be given as promptly as practical)such circumstances, (i) Borrower shall have no right to elect a LIBOR Rate with respect to advances hereunder; provided that nothing in this Section shall affect the LIBOR Rate then in effect on any Interest Period Notice that requests LIBOR Rate Advance outstanding at the conversion time of any Loan to, or continuation receipt by Borrower of any Loan as, a LIBO Loan shall be ineffective and such Loan shall be converted to a Base Rate Loan on notice until the last day expiration of the Interest LIBOR Rate Period applicable theretoin effect with respect to such LIBOR Rate Advance at such time, and (ii) if any Borrowing Notice requests a LIBO Loan, such the Loan Rate shall be made as a Base Rate Loandetermined based upon an alternate index selected by Agent, orin its sole discretion, at the election reasonably comparable to that of the Borrower Daily LIBOR Rate, intended to generate a return substantially the same as that generated by the Daily LIBOR Rate. (upon receipt j) Section 2.B.3.D of the determination Credit Agreement is hereby amended to be made by replace the Required Senior Lenders reference to “$30,000,000.00” with a reference to “the sum of (x) $30,000,000.00 and only if they are able (y) the aggregate amount of any increases in the Revolving Commitment Amount pursuant to agree on such a determination), made as a Loan bearing interest at such rate as Section 3.6 hereof”. (k) Section 5.8.C of the Required Senior Lenders shall determine adequately reflects Credit Agreement is hereby deleted in its entirety and the costs to the Senior Lenders of making such Loans.following is inserted in lieu thereof:

Inability to Determine LIBOR. If In the event that any fee, charge or other payment or amount under the Transaction Documents is determined by reference to LIBOR and Xxxx determines that the provisions of this Section 4.7 have been implicated, the Parties shall endeavor to establish an alternate rate to replace LIBOR for all such purposes pursuant to the terms of this Section 4.7: 4.7.1 If, prior to the commencement last Business Day of any Interest Period for a LIBO Loan: calendar quarter during the Term, Xxxx determines (awhich determination shall be conclusive absent manifest error) the Senior Facility Agent reasonably determines that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Facility Agent is advised by following three months in the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Senior Lenders of making or maintaining their LIBO Loans for such Interest Period; next calendar quarter, then the Senior Facility Agent Xxxx shall give notice (which may be telephonic) thereof to the Borrower and the Senior Lenders by telephone or telecopy Transaction Entities as promptly as practicable thereafter andpracticable, until whereupon, the Senior Facility Agent notifies the Borrower and the Senior Lenders that the circumstances giving rise Parties shall endeavor to such notice no longer exist establish an alternate rate of interest to LIBOR in accordance with Section 4.7.2. 4.7.2 If at any time Xxxx determines (which notice of subsequent change in circumstances determination shall be given as promptly as practical), conclusive absent manifest error) that (i) any Interest Period Notice that requests the conversion circumstances set forth in Section 4.7.1 have arisen (including because the rate described in the definition of any Loan to, “LIBOR” is not available or continuation of any Loan as, published on a LIBO Loan shall be ineffective current basis) and such Loan shall circumstances are unlikely to be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, and temporary or (ii) if any Borrowing Notice requests the occurrence of a LIBO Loanpublic statement or publication of information by or on behalf of the administrator of USD LIBOR, the regulatory supervisor for the administrator of USD LIBOR, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for USD LIBOR, a resolution authority with jurisdiction over the administrator for USD LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for USD LIBOR, announcing or stating that (a) such administrator has ceased to provide the USD LIBOR for three-month U.S. dollar deposits, permanently or indefinitely, then in either case of clauses (i) or (ii), Xxxx and the Transaction Entities shall endeavor to establish an alternate rate of interest to LIBOR that gives due consideration to the then prevailing market convention for determining a rate of interest for bilateral loans denominated in U.S. Dollars in the United States at such time, and Xxxx and the Transaction Entities shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such Loan related changes shall not include a reduction of the Applicable Margin); provided that if such alternate rate of interest shall be made as a Base Rate Loanless than zero, or, at the election of the Borrower (upon receipt of the determination such rate shall be deemed to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders zero for all purposes of making such Loansthis Agreement.

Inability to Determine LIBOR. If prior to the commencement of any Interest Period for relating to a LIBO LIBOR Loan: , (ax) the Senior Facility Administrative Agent reasonably determines shall have determined (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable methods (including, without limitation, by means of an Interpolated Rate) do not exist for ascertaining LIBOR for such Interest Period; or Period or (by) the Senior Facility Administrative Agent is advised shall have been notified by the Required Senior Lenders that such Required Senior Lenders have reasonably LIBOR as determined that LIBOR for such Interest Period (by reason of any changes arising on or after the Closing Date affecting the interbank LIBOR market) will not adequately and fairly reflect the cost to such Senior Lenders of (as conclusively certified by such Lenders) or making or maintaining their LIBO affected Loans for during such Interest Period; then the Senior Facility , Administrative Agent shall give promptly provide notice thereof of such determination to the Borrower and the Senior Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Facility Agent notifies the (which shall be conclusive and binding on Borrower and Lenders). In such event (A) any request for a LIBOR Loan or for a conversion to or continuation of a LIBOR Loan shall be automatically withdrawn and shall be deemed a request for, or a conversion to, a Base Rate Loan, (B) each LIBOR Loan will automatically, on the Senior last day of the then current Interest Period relating thereto, convert to a Base Rate Loan and (C) the obligations of Lenders to make LIBOR Loans shall be suspended until Administrative Agent or Required Lenders determine that the circumstances giving rise to such notice suspension no longer exist (exist, in which notice of subsequent change in circumstances event Administrative Agent shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Loan to, or continuation of any Loan as, a LIBO Loan shall be ineffective so notify Borrower and such Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Notice requests a LIBO Loan, such Loan shall be made as a Base Rate Loan, or, at the election of the Borrower (upon receipt of the determination to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such LoansLenders.

Inability to Determine LIBOR. If and whenever the Bank or, in respect of clauses (a) and (c) below, any Special Participant shall, in good faith, have determined (which determination shall be conclusive absent manifest error): (a) at any time prior to the commencement of any Interest Period that the Bank or such Special Participant is unable to obtain deposits on the London inter-bank market at the rate of LIBOR for a LIBO Loan: the applicable amount and Interest Period of any requested Advance, or (ab) by reason of changes affecting the Senior Facility Agent reasonably determines that relevant market due to circumstances beyond the Bank’s control, adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Facility Agent is advised by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such applicable amount and Interest Period with respect to any requested Advance, or (c) LIBOR will not adequately and fairly reflect the cost to the Bank or such Senior Lenders Special Participant of making funding or maintaining their LIBO Loans an Advance (or its participation therein) in the amount and for such Interest Period; then the Senior Facility Agent shall give notice thereof to the Borrower and the Senior Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Facility Agent notifies the Borrower and the Senior Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Loan to, or continuation of any Loan as, a LIBO Loan shall be ineffective and such Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, the Bank shall be entitled to give notice (a “Determination Notice”) of such event to the Company (a Determination Notice to contain particulars of the relevant circumstances giving rise to its issue) and, notwithstanding the provisions of clause 1.1.82 above, and until such notice has been withdrawn by the Bank, which withdrawal shall be given promptly by the Bank when such relevant circumstances giving rise to the Notice of Determination are no longer applicable, (i) the Commitment of the Bank to make Advances accruing interest at LIBOR shall be suspended, (ii) if each new Advance shall bear interest at the Reference Rate, plus the Fixed Addition, plus the Margin, and (iii) in the event of a determination under subclause (c) of this clause 4 above, each outstanding Advance shall bear interest at the Reference Rate, plus the Fixed Addition, plus the Margin for the remainder of such Interest Period, and the Reference Rate shall be binding upon the Company and take effect in accordance with its terms from the commencement, or, as applicable, for the remainder of the relevant Interest Period, as applicable, unless the Company shall have elected to prepay all such outstanding Advances pursuant to clause 5.2 below in respect of the period from the date of the Determination Notice until the date of actual prepayment of the Unpaid Balance of the Credit, together with any Borrowing Notice requests applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a LIBO LoanRequest for Disbursement has previously been given that it elects under such circumstances not to borrow on such date (it being understood that the Company will pay the Bank any applicable Breakage Costs), such Loan borrowing shall instead be made as a Base Rate Loan, or, an Advance accruing interest for each day at the election of Reference Rate, plus the Borrower (upon receipt of Fixed Addition, plus the determination to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such LoansMargin.

Inability to Determine LIBOR. If (i) Temporary InabilityReplacement of the Tranche Rate and Tenor Replacement. In the event, prior to the commencement of any Interest Period relating to a LIBORTranche Rate Loan, Lender shall determine thateither: (Ai) deposits in Dollars (in the applicable amounts) are not being offered to it in the London Interbank Offered Rate market for a LIBO Loan: such Interest Periodthe Tranche Rate is unavailable, unrepresentative, or unreliable, (aBii) by reason of circumstances affecting the Senior Facility Agent reasonably determines that London Interbank Offered Rate Market adequate and reasonable means methods do not exist for ascertaining LIBOR for such Interest Period; or LIBOR, (bC) the Senior Facility Agent is advised LIBORthe Tranche Rate as determined by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such Interest Period Lender will not adequately and fairly reflect the cost to such Senior Lenders Lender of making or maintaining their LIBO funding LIBORthe Tranche Rate Loans for such Interest Period, or (Diii) the making or funding of LIBORTranche Rate Loans has become impracticable; then, in any such case, Lender shall promptly provide notice of such determination to Administrative Borrower (which shall be conclusive and binding on Borrowers absent manifest error), and (xA) any request for a LIBORTranche Rate Loan or any continuation of a LIBORTranche Rate Loan shall be automatically withdrawn and shall be deemed a request for a Base Rate Loan, (yB) each LIBORTranche Rate Loan will automatically, on the last day of the then current Interest Period relating thereto, become a Base Rate Loan, and (zC) the Senior Facility Agent obligations of Lender to make LIBORTranche Rate Loans shall give notice thereof to the Borrower and the Senior Lenders by telephone or telecopy as promptly as practicable thereafter and, be suspended until the Senior Facility Agent notifies the Borrower and the Senior Lenders Lender determines that the circumstances giving rise to such notice suspension no longer exist (exist, in which notice of subsequent change in circumstances event Lender shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Loan to, or continuation of any Loan as, a LIBO Loan shall be ineffective and such Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Notice requests a LIBO Loan, such Loan shall be made as a Base Rate Loan, or, at the election of the Borrower (upon receipt of the determination to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such Loansso notify Administrative Borrower.

Inability to Determine LIBOR. If and whenever the Bank or, in respect of clauses (a) and (c) below, any Special Participant shall, in good faith, have determined (which determination shall be conclusive absent manifest error): (a) at any time prior to the commencement of any Interest Period that the Bank or such Special Participant is unable to obtain deposits on the London inter-bank market at the rate of LIBOR for a LIBO Loan: the applicable amount and Interest Period of any requested Advance, or (ab) by reason of changes affecting the Senior Facility Agent reasonably determines that relevant market due to circumstances beyond the Bank’s control, adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or (b) the Senior Facility Agent is advised by the Required Senior Lenders that such Required Senior Lenders have reasonably determined that LIBOR for such applicable amount and Interest Period with respect to any requested Advance, or (c) LIBOR will not adequately and fairly reflect the cost to the Bank or such Senior Lenders Special Participant of making funding or maintaining their LIBO Loans an Advance (or its participation therein) in the amount and for such Interest Period; then the Senior Facility Agent shall give notice thereof to the Borrower and the Senior Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Senior Facility Agent notifies the Borrower and the Senior Lenders that the circumstances giving rise to such notice no longer exist (which notice of subsequent change in circumstances shall be given as promptly as practical), (i) any Interest Period Notice that requests the conversion of any Loan to, or continuation of any Loan as, a LIBO Loan shall be ineffective and such Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto, the Bank shall be entitled to give notice (a “Determination Notice”) of such event to the Company (a Determination Notice to contain particulars of the relevant circumstances giving rise to its issue) and, notwithstanding the provisions of clause 1.1.106 above, and until such notice has been withdrawn by the Bank, which withdrawal shall be given promptly by the Bank when such relevant circumstances giving rise to the Notice of Determination are no longer applicable, (i) the Commitment of the Bank to make Advances accruing interest at LIBOR shall be suspended, (ii) if each new Advance shall bear interest at the Reference Rate, plus the Fixed Addition, plus the Margin, and (iii) in the event of a determination under subclause (c) of this clause 4 above, each outstanding Advance shall bear interest at the Reference Rate, plus the Fixed Addition, plus the Margin for the remainder of such Interest Period, and the Reference Rate shall be binding upon the Company and take effect in accordance with its terms from the commencement, or, as applicable, for the remainder of the relevant Interest Period, as applicable, unless the Company shall have elected to prepay all such outstanding Advances pursuant to clause 5.2 below in respect of the period from the date of the Determination Notice until the date of actual prepayment of the Unpaid Balance of the Credit, together with any Borrowing Notice requests applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a LIBO LoanRequest for Disbursement has previously been given that it elects under such circumstances not to borrow on such date (it being understood that the Company will pay the Bank any applicable Breakage Costs), such Loan borrowing shall instead be made as a Base Rate Loan, or, an Advance accruing interest for each day at the election of Reference Rate, plus the Borrower (upon receipt of Fixed Addition, plus the determination to be made by the Required Senior Lenders and only if they are able to agree on such a determination), made as a Loan bearing interest at such rate as the Required Senior Lenders shall determine adequately reflects the costs to the Senior Lenders of making such LoansMargin.