BORROWER UNDER THIS SECTION 2.36
WITH RESPECT TO THE TAXES OR OTHER TAXES GIVING RISE TO SUCH REFUND), NET OF ALL
OUT-OF-POCKET EXPENSES OF SUCH AGENT OR SUCH LENDER, AS THE CASE MAY BE, AND
WITHOUT INTEREST (OTHER THAN ANY INTEREST PAID BY THE RELEVANT GOVERNMENTAL
AUTHORITY WITH RESPECT TO SUCH REFUND); PROVIDED THAT BORROWER, UPON THE REQUEST
OF SUCH AGENT OR SUCH LENDER, AGREES TO REPAY THE AMOUNT PAID OVER TO BORROWER
(PLUS ANY PENALTIES, INTEREST OR OTHER CHARGES IMPOSED BY THE RELEVANT
GOVERNMENTAL AUTHORITY) TO SUCH AGENT OR SUCH LENDER IN THE EVENT SUCH AGENT OR
SUCH LENDER IS REQUIRED TO REPAY SUCH REFUND TO SUCH GOVERNMENTAL AUTHORITY.
THIS PARAGRAPH SHALL NOT BE CONSTRUED TO REQUIRE ANY AGENT OR ANY LENDER TO MAKE
AVAILABLE ITS TAX RETURNS (OR ANY OTHER INFORMATION RELATING TO ITS TAXES WHICH
IT DEEMS CONFIDENTIAL) TO BORROWER OR ANY OTHER PERSON.
41
Section 2.37
Mitigation Obligations; Replacement of Lenders.
(A)
DESIGNATION OF A DIFFERENT LENDING OFFICE. IF ANY LENDER REQUESTS
COMPENSATION UNDER SECTION 2.34 OR 2.35 OR REQUIRES BORROWER TO PAY ANY
ADDITIONAL AMOUNT TO ANY LENDER OR ANY GOVERNMENTAL AUTHORITY FOR THE ACCOUNT OF
ANY LENDER PURSUANT TO SECTION 2.36, THEN SUCH LENDER SHALL USE REASONABLE
EFFORTS TO DESIGNATE A DIFFERENT LENDING OFFICE FOR FUNDING OR BOOKING ITS LOANS
HEREUNDER OR TO ASSIGN ITS RIGHTS AND OBLIGATIONS HEREUNDER TO ANOTHER OF ITS
OFFICES, BRANCHES OR AFFILIATES, IF, IN THE JUDGMENT OF SUCH LENDER, SUCH
DESIGNATION OR ASSIGNMENT (I) WOULD ELIMINATE OR REDUCE AMOUNTS PAYABLE PURSUANT
TO SECTION 2.34, 2.35 OR 2.36 AS THE CASE MAY BE, IN THE FUTURE AND (II) WOULD
NOT SUBJECT SUCH LENDER TO ANY UNREIMBURSED COST OR EXPENSE AND WOULD NOT
OTHERWISE BE DISADVANTAGEOUS TO SUCH LENDER. BORROWER HEREBY AGREES TO PAY ALL
REASONABLE AND DOCUMENTED COSTS AND EXPENSES INCURRED BY ANY LENDER IN
CONNECTION WITH ANY SUCH DESIGNATION OR ASSIGNMENT.
(B)
REPLACEMENT OF LENDERS. IF (I) ANY LENDER REQUESTS COMPENSATION
UNDER SECTION 2.34 OR 2.35, (II) BORROWER IS REQUIRED TO PAY ANY ADDITIONAL
AMOUNT TO ANY LENDER OR ANY GOVERNMENTAL AUTHORITY FOR THE ACCOUNT OF ANY LENDER
PURSUANT TO SECTION 2.36 OR (III) ANY LENDER REFUSES TO CONSENT TO AN AMENDMENT,
MODIFICATION OR WAIVER REQUIRED PURSUANT TO SECTION 10.04 WITH RESPECT TO ANY
LOAN DOCUMENT WHICH HAS OTHERWISE BEEN APPROVED BY REQUISITE LENDERS, THEN
BORROWER MAY, AT ITS SOLE EXPENSE AND EFFORT, UPON NOTICE TO SUCH LENDER AND
ADMINISTRATIVE AGENT, REQUIRE SUCH LENDER TO ASSIGN AND DELEGATE, WITHOUT
RECOURSE (IN ACCORDANCE WITH AND SUBJECT TO THE RESTRICTIONS CONTAINED IN, AND
CONSENTS REQUIRED BY, SECTION 10.06), ALL OF ITS INTERESTS, RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT AND THE RELATED LOAN DOCUMENTS TO AN ASSIGNEE
THAT SHALL ASSUME SUCH OBLIGATIONS (WHICH ASSIGNEE MAY BE ANOTHER LENDER, IF A
LENDER ACCEPTS SUCH ASSIGNMENT); PROVIDED THAT:
(I)
BORROWER SHALL HAVE PAID TO ADMINISTRATIVE AGENT THE ASSIGNMENT
FEE SPECIFIED IN SECTION 10.06,
(II)
SUCH LENDER SHALL HAVE RECEIVED PAYMENT OF AN AMOUNT EQUAL TO THE
OUTSTANDING PRINCIPAL OF ITS LOANS, ACCRUED INTEREST