AMOUNTS PURSUANT TO THIS SECTION, IT
SHALL PAY TO SUCH BORROWER AN AMOUNT EQUAL TO SUCH REFUND (BUT ONLY TO THE
EXTENT OF INDEMNITY PAYMENTS MADE, OR ADDITIONAL AMOUNTS PAID, BY SUCH BORROWER
UNDER THIS SECTION WITH RESPECT TO THE TAXES OR OTHER TAXES GIVING RISE TO SUCH
REFUND), NET OF ALL OUT-OF-POCKET EXPENSES OF THE ADMINISTRATIVE 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 THE APPLICABLE BORROWER, UPON THE REQUEST OF THE ADMINISTRATIVE AGENT OR
SUCH LENDER, AGREES TO REPAY THE AMOUNT PAID OVER TO SUCH BORROWER (PLUS ANY
PENALTIES, INTEREST OR OTHER CHARGES IMPOSED BY THE RELEVANT GOVERNMENTAL
AUTHORITY) TO THE ADMINISTRATIVE AGENT OR SUCH LENDER IN THE EVENT THE
ADMINISTRATIVE AGENT OR SUCH LENDER IS REQUIRED TO REPAY SUCH REFUND TO SUCH
GOVERNMENTAL AUTHORITY.
THE ADMINISTRATIVE AGENT AND EACH LENDER (AND
PARTICIPANT) SHALL TAKE SUCH ACTION AS THE BORROWERS MAY REASONABLY REQUEST IN
ORDER TO APPLY FOR AND OBTAIN ANY REFUND OF SUCH AMOUNTS AS THE BORROWERS
REASONABLY DETERMINE TO BE APPROPRIATE UNDER THE CIRCUMSTANCES, PROVIDED THAT
ANY SUCH ACTIONS SHALL BE AT THE SOLE COST AND EXPENSE OF THE BORROWERS.
THIS
PARAGRAPH SHALL NOT BE CONSTRUED TO REQUIRE THE ADMINISTRATIVE AGENT OR ANY
LENDER TO MAKE AVAILABLE ITS TAX RETURNS (OR ANY OTHER INFORMATION RELATING TO
ITS TAXES WHICH IT DEEMS CONFIDENTIAL) TO THE BORROWERS OR ANY OTHER PERSON.
(G)
SURVIVAL.
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER
AGREEMENT OF THE BORROWERS HEREUNDER, THE AGREEMENTS AND OBLIGATIONS OF THE
BORROWERS CONTAINED IN THIS SECTION SHALL SURVIVE THE PAYMENT IN FULL OF THE
OBLIGATIONS AND THE TERMINATION OF THE AGGREGATE COMMITMENT.
SECTION 4.12
Mitigation Obligations; Replacement of Lenders.
(A)
DESIGNATION OF A DIFFERENT LENDING OFFICE. IF ANY LENDER REQUESTS
COMPENSATION UNDER SECTION 4.10, OR REQUIRES ANY BORROWER TO PAY ANY ADDITIONAL
AMOUNT TO ANY LENDER OR ANY
33
GOVERNMENTAL AUTHORITY FOR THE ACCOUNT OF ANY LENDER PURSUANT TO SECTION 4.11,
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 4.10 OR SECTION 4.11, 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.
THE
BORROWERS HEREBY AGREE TO PAY ALL REASONABLE 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 4.10, (II) ANY BORROWER IS REQUIRED TO PAY ANY ADDITIONAL AMOUNT
TO ANY LENDER OR ANY GOVERNMENTAL AUTHORITY FOR THE ACCOUNT OF ANY LENDER
PURSUANT TO SECTION 4.11, (III) THE OBLIGATION OF ANY LENDER TO MAKE LIBOR RATE