Common use of Certain Provisions Relating to Increased Costs; Affected Lenders Clause in Contracts

Certain Provisions Relating to Increased Costs; Affected Lenders. If a Lender gives notice of the existence of the circumstances set forth in §4.2 or any Lender requests compensation for any losses or costs to be reimbursed pursuant to any one or more of the provisions of §5.1(b) (as a result of the imposition of U.S. withholding taxes on amounts paid to such Lender under this Agreement), §4.1 or §4.2, then, upon request of the Borrower, such Lender, as applicable, shall use reasonable efforts in a manner consistent with such institution’s practice in connection with loans like the Loan of such Lender to eliminate, mitigate or reduce amounts that would otherwise be payable by the Borrower under the foregoing provisions, provided that such action would not be otherwise prejudicial to such Lender, including, without limitation, by designating another of such Lender’s offices, branches or affiliates; the Borrower agreeing to pay all reasonably incurred costs and expenses incurred by such Lender in connection with any such action. Notwithstanding anything to the contrary contained herein, if no Default or Event of Default shall have occurred and be continuing, and if any Lender has given notice of the existence of the circumstances set forth in §4.2 or has requested payment or compensation for any losses or costs to be reimbursed pursuant to any one or more of the provisions of §5.1(b) (as a result of the imposition of U.S. withholding taxes on amounts paid to such Lender under this Agreement), §4.1 or §4.2 and following the request of the Borrower has been unable to take the steps described above to mitigate such amounts (each, an “Affected Lender”), then, within thirty (30) days after such notice or request for payment or compensation, the Borrower shall have the one-time right as to such Affected Lender, to be exercised by delivery of written notice delivered to the Agent and the Affected Lender within thirty (30) days of receipt of such notice, to elect to cause the Affected Lender to transfer its Commitment (provided further that Borrower shall not have the rights set forth in this §4.6 as to Affected Lenders if the Affected Lenders constitute Majority Lenders). The Agent shall promptly notify the remaining Lenders that each of such Lenders shall have the right, but not the obligation, to acquire a portion of the Commitment, pro rata based upon their relevant Commitment Percentages, of the Affected Lender (or if any of such Lenders does not elect to purchase its pro rata share, then to such remaining Lenders in such proportion as approved by the Agent). In the event that the Lenders do not elect to acquire all of the Affected Lender’s Commitment, then the Agent shall at Borrower’s sole cost and expense endeavor to obtain a new Lender to acquire such remaining Commitment. Upon any such purchase of the Commitment of the Affected Lender, the Affected Lender’s interest in the Obligations and its rights hereunder and under the Loan Documents shall terminate at the date of purchase, and the Affected Lender shall at the sole cost and expense of Borrower promptly execute all documents reasonably requested to surrender and transfer such interest in accordance with §13.1. The purchase price for the Affected Lender’s Commitment shall equal any and all amounts outstanding and owed by the Borrower to the Affected Lender including principal, prepayment premium or fee, and all accrued and unpaid interest or fees (some of which may be paid by the Borrower, as determined by the Borrower and the replacement Lender).

Certain Provisions Relating to Increased Costs; Affected Lenders. If a Lender gives notice of the existence of the circumstances set forth in §4.2 or any Lender requests compensation for any losses or costs to be reimbursed pursuant to any one or more of the provisions of §5.1(b) (as a result of the imposition of U.S. withholding taxes on amounts paid to 40 such Lender under this Agreement), §4.1 or §4.2, then, upon request of the Borrower, such Lender, as applicable, shall use reasonable efforts in a manner consistent with such institution’s practice in connection with loans like the Loan of such Lender to eliminate, mitigate or reduce amounts that would otherwise be payable by the Borrower under the foregoing provisions, provided that such action would not be otherwise prejudicial to such Lender, including, without limitation, by designating another of such Lender’s offices, branches or affiliates; the Borrower agreeing to pay all reasonably incurred costs and expenses incurred by such Lender in connection with any such action. Notwithstanding anything to the contrary contained herein, if no Default or Event of Default shall have occurred and be continuing, and if any Lender has given notice of the existence of the circumstances set forth in §4.2 or has requested payment or compensation for any losses or costs to be reimbursed pursuant to any one or more of the provisions of §5.1(b) (as a result of the imposition of U.S. withholding taxes on amounts paid to such Lender under this Agreement), §4.1 or §4.2 and following the request of the Borrower has been unable to take the steps described above to mitigate such amounts (each, an “Affected Lender”), then, within thirty (30) days after such notice or request for payment or compensation, the Borrower shall have the one-time right as to such Affected Lender, to be exercised by delivery of written notice delivered to the Agent and the Affected Lender within thirty (30) days of receipt of such notice, to elect to cause the Affected Lender to transfer its Commitment (provided further that Borrower shall not have the rights set forth in this §4.6 as to Affected Lenders if the Affected Lenders constitute Majority Lenders). The Agent shall promptly notify the remaining Lenders that each of such Lenders shall have the right, but not the obligation, to acquire a portion of the Commitment, pro rata based upon their relevant Commitment Percentages, of the Affected Lender (or if any of such Lenders does not elect to purchase its pro rata share, then to such remaining Lenders in such proportion as approved by the Agent). In the event that the Lenders do not elect to acquire all of the Affected LenderXxxxxx’s Commitment, then the Agent shall at Borrower’s sole cost and expense endeavor to obtain a new Lender to acquire such remaining Commitment. Upon any such purchase of the Commitment of the Affected Lender, the Affected LenderXxxxxx’s interest in the Obligations and its rights hereunder and under the Loan Documents shall terminate at the date of purchase, and the Affected Lender shall at the sole cost and expense of Borrower promptly execute all documents reasonably requested to surrender and transfer such interest in accordance with §13.1. The purchase price for the Affected Lender’s Commitment shall equal any and all amounts outstanding and owed by the Borrower to the Affected Lender including principal, prepayment premium or fee, and all accrued and unpaid interest or fees (some of which may be paid by the Borrower, as determined by the Borrower and the replacement Lender).