Common use of Inability to Determine LIBOR Clause in Contracts

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 the applicable amount and Interest Period of any requested Advance, or (b) by reason of changes affecting the relevant market due to circumstances beyond the Bank’s control, adequate and reasonable means do not exist for ascertaining LIBOR for the 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 Special Participant of funding or maintaining an Advance (or its participation therein) in the amount and for 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 [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. 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giving rise to its issue) and, notwithstanding the provisions of clause 1.1.82 above, and until such notice has been withdrawn by the Bank, which withdrawal shall be given promptly by the Bank when such relevant circumstances giving rise to the Notice of Determination are no longer applicable, (i) the Commitment of the Bank to make Advances accruing interest at LIBOR shall be suspended, (ii) each new Advance shall bear interest at the Reference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 applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a Request 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 borrowing shall instead be made as an Advance accruing interest for each day at the Reference Rate, plus the Fixed Addition, plus the Margin.

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 the applicable amount and Interest Period of any requested Advance, or (b) by reason of changes affecting the relevant market due to circumstances beyond the Bank’s control, adequate and reasonable means do not exist for ascertaining LIBOR for the 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 Special Participant of funding or maintaining an Advance (or its participation therein) in the amount and for 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 [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. particulars of the relevant circumstances giving rise to its issue) and, notwithstanding the provisions of clause 1.1.82 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) 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 applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a Request 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 borrowing shall instead be made as an Advance accruing interest for each day at the Reference Rate, plus the Fixed Addition, plus the Margin.

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 the applicable amount and Interest Period of any requested Advance, or (b) by reason of changes affecting the relevant market due to circumstances beyond the Bank’s control, adequate and reasonable means do not exist for ascertaining LIBOR for the 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 Special Participant of funding or maintaining an Advance (or its participation therein) in the amount and for 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 [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. particulars of the relevant circumstances giving rise to its issue) and, notwithstanding the provisions of clause 1.1.82 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) 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 applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a Request 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 borrowing shall instead be made as an Advance accruing interest for each day at the Reference Rate, plus the Fixed Addition, plus the Margin.

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 the applicable amount and Interest Period of any requested Advance, or (b) by reason of changes affecting the relevant market due to circumstances beyond the Bank’s control, adequate and reasonable means do not exist for ascertaining LIBOR for the 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 Special Participant of funding or maintaining an Advance (or its participation therein) in the amount and for 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 [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. particulars of the relevant circumstances giving rise to its issue) and, notwithstanding the provisions of clause 1.1.82 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) 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 applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a Request 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 borrowing shall instead be made as an Advance accruing interest for each day at the Reference Rate, plus the Fixed Addition, plus the Margin.

Inability to Determine LIBOR. If (b) (i) Temporary InabilityReplacement of the Tranche Rate and whenever Tenor Replacement. In the Bank orevent, 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 relating to a LIBORTranche Rate Loan, Lender shall determine thateither: (Ai) deposits in Dollars (in the Bank or such Special Participant is unable applicable amounts) are not being offered to obtain deposits on it in the London inter-bank Interbank Offered Rate market at the rate of LIBOR for the applicable amount and such Interest Period of any requested AdvancePeriodthe Tranche Rate is unavailable, unrepresentative, or unreliable, (bBii) by reason of changes circumstances affecting the relevant market due to circumstances beyond the Bank’s control, London Interbank Offered Rate Market adequate and reasonable means methods do not exist for ascertaining LIBOR for the applicable amount and Interest Period with respect to any requested AdvanceLIBOR, or (cC) LIBOR LIBORthe Tranche Rate as determined by Lender will not adequately and fairly reflect the cost to the Bank or such Special Participant Lender of funding LIBORthe Tranche Rate Loans for such Interest Period, or maintaining an Advance (Diii) the making or its participation thereinfunding 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) in 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 amount and for last day of the then current Interest Period applicable relating thereto, become a Base Rate Loan, and (zC) the Bank obligations of Lender to make LIBORTranche Rate Loans shall be entitled to give notice (a “Determination Notice”) of such event to suspended until Lender determines that the Company (a Determination Notice to contain [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. 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 suspension no longer applicableexist, (i) the Commitment of the Bank to make Advances accruing interest at LIBOR in which event Lender shall be suspended, (ii) 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 applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a Request 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 borrowing shall instead be made as an Advance accruing interest for each day at the Reference Rate, plus the Fixed Addition, plus the Marginso notify Administrative Borrower.

Inability to Determine LIBOR. If In the event, prior to commencement of any Interest Period relating to a LIBOR Loan, the Administrative Agent shall determine that adequate and whenever reasonable methods do not exist for ascertaining LIBOR, Administrative Agent shall promptly provide notice of such determination to Borrower and Lenders (which shall be conclusive and binding on Borrower). In such event and until Administrative Agent notifies Borrower and Lenders that the Bank orcircumstances giving rise to such notice no longer exist: (1) 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 a Base Rate Loan, in respect (2) each LIBOR Loan will automatically, on the last day of clauses (a) the then current Interest Period relating thereto, become a Base Rate Loan and (c3) below, the obligations of such Lender to make LIBOR Loans shall be suspended. If at any Special Participant shall, in good faith, have determined time Administrative Agent determines (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 the applicable amount and Interest Period of any requested Advance, or (b) by reason of changes affecting the relevant market due to circumstances beyond the Bank’s control, adequate and reasonable means do not exist for ascertaining LIBOR for the 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 Special Participant of funding or maintaining an Advance (or its participation therein) in the amount and for 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 [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. 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 circumstances set forth in the first sentence of the Bank this Section 2.16(a) have arisen and such circumstances are unlikely to make Advances accruing interest at LIBOR shall be suspended, temporary or (ii) each new Advance 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 public statement identifying a specific date after which LIBOR shall bear 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 the Reference Rate, plus the Fixed Addition, plus the Marginsuch time, and (iii) 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 amendment shall become effective without any further action or consent of any other party to this Agreement so long as Administrative Agent shall not have received, within five Business Days of 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 date notice of such Interest Periodalternate rate of interest is provided to Lenders, and the Reference Rate shall be binding upon the Company and take effect in accordance with its terms a written notice from the commencement, or, as applicable, for the remainder of the relevant Interest Period, as applicable, unless the Company shall have elected Required Lenders stating that such Required Lenders object 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 applicable Breakage Costs. Unless the Company notifies the Bank at least two (2) Business Days before the date of any borrowing for which a Request 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 borrowing shall instead be made as an Advance accruing interest for each day at the Reference Rate, plus the Fixed Addition, plus the Marginamendment.