Common use of Obligation to Mitigate Clause in Contracts

Obligation to Mitigate. (a) If any Senior Issuing Bank, the Swing Line Lender or any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay any additional amount to any Senior Lender, any Senior Issuing Bank, the Swing Line Lender or any Government Authority for the account of any Senior Lender, the Swing Line Lender or any Senior Issuing Bank pursuant to Section 5.06 (Taxes), then such Senior Lender, Swing Line Lender or Senior Issuing Bank, as the case may be, if requested by the Borrower in writing, shall use commercially reasonable efforts to designate a different lending office for funding or booking its Loans or issuing or maintaining its Letters of Credit hereunder or to assign its rights and obligations under the Financing Documents to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Senior Lender, the Swing Line Lender or such Senior Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.03 (Increased Costs) or Section 5.06 (Taxes), as applicable, in the future and (ii) would not subject such Senior Lender, Swing Line Lender or such Senior Issuing Bank, as the case may be, to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Senior Lender, Swing Line Lender or the Senior Issuing Bank in any material respect, contrary to such Senior Lender’s, Swing Line Lender’s or such Senior Issuing Bank’s normal banking practices or violate any applicable Government Rule. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Senior Lender, the Swing Line Lender or such Senior Issuing Bank, as the case may be, in connection with any such designation or assignment. (b) If any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay any additional amount to any Senior Lender or any Government Authority for the account of any Senior Lender pursuant to Section 5.06 (Taxes) and, in each case, such Senior Lender has declined or is unable to designate a different lending office or to make an assignment in accordance with Section 5.04(a), or if any Senior Lender is a Defaulting Lender, then, so long as no Default or Event of Default has occurred and is continuing, the Borrower may, at its sole expense and effort, upon notice in writing to such Senior Lender and the Senior Facility Agent, request such Senior Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 11.04 (Assignments)), all (but not less than all) its interests, rights and obligations under this Agreement (including all of its Commitment, if any, its participations in Letters or Credit and the Loans at the time owing to it) to an Eligible Assignee that shall assume such obligations (which assignee may be a Senior Lender, if such Senior Lender accepts such assignment); provided that, (i) the Borrower shall have received the prior written consent of the Senior Facility Agent, (ii) such Senior Lender shall have received payment of an amount equal to all Obligations of the Borrower owing to such Senior Lender from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other Obligations) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 5.03 (Increased Costs), or payments required to be made pursuant to Section 5.06 (Taxes), such assignment will result in the elimination or reduction of such compensation or payments. A Senior Lender shall not be required to make any such assignment and delegation if, as a result of a waiver by such Senior Lender of its rights under Section 5.03 (Increased Costs) or Section 5.06 (Taxes), as applicable, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If, notwithstanding the satisfaction of each of the conditions set forth in Section 5.03 (Increased Costs) or Section 5.06 (Taxes), a Senior Lender refuses to be replaced pursuant to this Section 5.04, the Borrower shall not be obligated to pay such Senior Lender any of the compensation referred to in this Section 5.04 or any additional amounts incurred or accrued under Section 5.03 (Increased Costs) or Section 5.06 (Taxes) from and after the date that such replacement would have occurred but for such Senior Lender’s refusal. Nothing in this Section shall be deemed to prejudice any rights that the Borrower, the Senior Facility Agent, the Swing Line Lender, any Senior Issuing Bank or any Senior Lender may have against any Senior Lender that is a Defaulting Lender. (c) If (i) any Senior Lender (such Senior Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, consent or termination which pursuant to the terms of Section 11.01 (

Obligation to Mitigate. (a) If any Senior Working Capital Lender, Issuing Bank, the Bank or Swing Line Lender or any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay any additional amount to any Senior Working Capital Lender, any Senior Issuing Bank, the Bank or Swing Line Lender or any Government Governmental Authority for the account of any Senior Working Capital Lender, the Issuing Bank or Swing Line Lender or any Senior Issuing Bank pursuant to Section 5.06 (Taxes), then such Senior Working Capital Lender, Issuing Bank or Swing Line Lender or Senior Issuing Bank, as shall have an obligation to mitigate such compensation in accordance with Section 19.5(a) (Mitigation Obligations; Replacement of Lenders) of the case may be, if requested by the Borrower in writing, shall use commercially reasonable efforts to designate a different lending office for funding or booking its Loans or issuing or maintaining its Letters of Credit hereunder or to assign its rights and obligations under the Financing Documents to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Senior Lender, the Swing Line Lender or such Senior Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.03 (Increased Costs) or Section 5.06 (Taxes), as applicable, in the future and (ii) would not subject such Senior Lender, Swing Line Lender or such Senior Issuing Bank, as the case may be, to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Senior Lender, Swing Line Lender or the Senior Issuing Bank in any material respect, contrary to such Senior Lender’s, Swing Line Lender’s or such Senior Issuing Bank’s normal banking practices or violate any applicable Government Rule. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Senior Lender, the Swing Line Lender or such Senior Issuing Bank, as the case may be, in connection with any such designation or assignmentCommon Terms Agreement. (b) If any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the The Borrower is required to pay any additional amount to any Senior Lender or any Government Authority for the account of any Senior Lender pursuant to Section 5.06 (Taxes) and, in each case, such Senior Lender has declined or is unable to designate may require a different lending office or to make an assignment in accordance with Section 5.04(a), or if any Senior Lender is a Defaulting Working Capital Lender, then, so long as no Default Issuing Bank or Event of Default has occurred and is continuing, the Borrower may, at its sole expense and effort, upon notice in writing to such Senior Lender and the Senior Facility Agent, request such Senior Swing Line Lender to assign and delegate, without recourse delegate (in accordance with and subject to the restrictions contained in Section 11.04 (Assignments)), all (but not less than all) its interests, rights and obligations under this Agreement (including all of its Commitment, if any, its participations in Letters or Credit and the Loans at the time owing to itrelated Finance Documents in accordance with Section 19.5(c) to an Eligible Assignee that shall assume such obligations (which assignee may be a Senior Lender, if such Senior Lender accepts such assignment)Mitigation Obligations; provided that, (iReplacement of Lenders) the Borrower shall have received the prior written consent of the Senior Facility Agent, (ii) such Senior Lender shall have received payment of an amount equal to all Obligations of the Borrower owing to such Senior Lender from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other Obligations) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 5.03 (Increased Costs), or payments required to be made pursuant to Section 5.06 (Taxes), such assignment will result in the elimination or reduction of such compensation or payments. A Senior Lender shall not be required to make any such assignment and delegation if, as a result of a waiver by such Senior Lender of its rights under Section 5.03 (Increased Costs) or Section 5.06 (Taxes), as applicable, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If, notwithstanding the satisfaction of each of the conditions set forth in Section 5.03 (Increased Costs) or Section 5.06 (Taxes), a Senior Lender refuses to be replaced pursuant to this Section 5.04, the Borrower shall not be obligated to pay such Senior Lender any of the compensation referred to in this Section 5.04 or any additional amounts incurred or accrued under Section 5.03 (Increased Costs) or Section 5.06 (Taxes) from and after the date that such replacement would have occurred but for such Senior Lender’s refusalCommon Terms Agreement. Nothing in this Section shall be deemed to prejudice any rights that the Borrower, the Senior Working Capital Facility Agent, the Swing Line Agent or any Working Capital Lender, any Senior Issuing Bank or any Senior Swing Line Lender may have against any Senior Working Capital Lender, Issuing Bank or Swing Line Lender that is a Defaulting Lender. (c) If (i) . Notwithstanding anything in this section to the contrary, any Senior Working Capital Lender that acts as an Issuing Bank may not be replaced hereunder at any time it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such Working Capital Lender (including the furnishing of a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to such Senior Lender, Issuing Bank or the depositing of cash collateral into a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, consent or termination which cash collateral account in amounts and pursuant to the terms arrangements reasonably satisfactory to such Issuing Bank) have been made with respect to such outstanding Letter of Section 11.01 (Credit.

Obligation to Mitigate. (a) If any Senior Issuing Bank, the Swing Line Lender or any Senior KSURE Covered Facility Lender requests compensation under Section 5.03 4.03 (Increased Costs), or if the Borrower is required to pay any additional amount to any Senior Lender, any Senior Issuing Bank, the Swing Line KSURE Covered Facility Lender or any Government Authority for the account of any Senior Lender, the Swing Line KSURE Covered Facility Lender or any Senior Issuing Bank pursuant to Section 5.06 4.06 (Taxes), then then, such Senior KSURE Covered Facility Lender, Swing Line Lender or Senior Issuing Bank, as the case may be, if requested by the Borrower in writing, shall use commercially reasonable efforts to designate a different lending office for funding or booking its KSURE Covered Facility Loans or issuing or maintaining its Letters of Credit hereunder or to assign its rights and obligations under the Financing Documents to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Senior KSURE Covered Facility Lender, the Swing Line Lender or such Senior Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.03 4.03 (Increased Costs) or Section 5.06 4.06 (Taxes), as applicable, in the future and (ii) would not subject such Senior Lender, Swing Line KSURE Covered Facility Lender or such Senior Issuing Bank, as the case may be, to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Senior Lender, Swing Line KSURE Covered Facility Lender or the Senior Issuing Bank in any material respect, contrary to such Senior KSURE Covered Facility Lender’s, Swing Line Lender’s or such Senior Issuing Bank’s normal banking practices or violate any applicable Government Rule. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Senior Lender, the Swing Line KSURE Covered Facility Lender or such Senior Issuing Bank, as the case may be, in connection with any such designation or assignment. (b) If Subject to Section 4.04(c), if any Senior KSURE Covered Facility Lender requests compensation under Section 5.03 4.03 (Increased Costs), or if the Borrower is required to pay any additional amount to any Senior KSURE Covered Facility Lender or any Government Authority for the account of any Senior KSURE Covered Facility Lender pursuant to Section 5.06 4.06 (Taxes) and, in each case, such Senior KSURE Covered Facility Lender has declined or is unable to designate a different lending office or to make an assignment in accordance with Section 5.04(a4.04(a), or if any Senior KSURE Covered Facility Lender is a Defaulting Lender, then, so long as no Default or Event of Default has occurred and is continuing, then the Borrower may, at its sole expense and effort, upon notice in writing to such Senior KSURE Covered Facility Lender and the Senior KSURE Covered Facility Agent, request such Senior KSURE Covered Facility Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 11.04 (Assignments)), all (but not less than all) its interests, rights and obligations under this Agreement (including all of its Commitment, if any, its participations in Letters or Credit KSURE Covered Facility Loans and the Loans at the time owing to itKSURE Covered Facility Commitments) to an Eligible Assignee that shall assume such obligations (which assignee may be a Senior an Eligible Facility Lender, if such Senior Eligible Facility Lender accepts such assignment); provided that, that (i) the Borrower shall have received the prior written consent of the Senior KSURE Covered Facility Agent, (ii) such Senior KSURE Covered Facility Lender shall have received payment of an amount equal to all Obligations of the Borrower owing to such Senior KSURE Covered Facility Lender from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other Obligations) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 5.03 4.03 (Increased Costs), ) or payments required to be made pursuant to Section 5.06 4.06 (Taxes), such assignment will result in the elimination or reduction of such compensation or payments. A Senior KSURE Covered Facility Lender shall not be required to make any such assignment and delegation if, as a result of a waiver by such Senior KSURE Covered Facility Lender of its rights under Section 5.03 Sections 4.03 (Increased Costs) or Section 5.06 4.06 (Taxes), as applicable, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If, notwithstanding the satisfaction of each of the conditions set forth in Section 5.03 Sections 4.03 (Increased Costs) or Section 5.06 4.06 (Taxes), a Senior KSURE Covered Facility Lender refuses to be replaced pursuant to this Section 5.044.04, the Borrower shall not be obligated to pay such Senior KSURE Covered Facility Lender any of the compensation referred to in this Section 5.04 4.04 or any additional amounts incurred or accrued under Section 5.03 Sections 4.03 (Increased Costs) or Section 5.06 4.06 (Taxes) from and after the date that such replacement would have occurred but for such Senior KSURE Covered Facility Lender’s refusal. Nothing in this Section 4.04 shall be deemed to prejudice any rights that the Borrower, the Senior KSURE Covered Facility Agent, the Swing Line Lender, any Senior Issuing Bank Agent or any Senior KSURE Covered Facility Lender may have against any Senior KSURE Covered Facility Lender that is a Defaulting Lender. (c) As a condition of the right of the Borrower to remove any KSURE Covered Facility Lender pursuant to Section 4.04(b) and (d), the Borrower shall either (i) arrange for the assignment or novation of any Interest Rate Protection Agreements with such KSURE Covered Facility Lender or any of its Affiliates simultaneously with such removal or (ii) terminate the applicable Interest Rate Protection Agreement and pay any relevant Hedge Termination Value. (d) If (i) any Senior KSURE Covered Facility Lender (such Senior KSURE Covered Facility Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, consent or termination which pursuant to the terms of Section 11.01 (

Obligation to Mitigate. (a) If any the Senior Issuing Bank, the Swing Line Lender Bank or any Senior LC Lender requests compensation under Section 5.03 5.01 (Increased Costs), or if the Borrower is required to pay any additional amount to any Senior LC Lender, any the Senior Issuing Bank, the Swing Line Lender Bank or any Government Authority for the account of any Senior Lender, the Swing Line LC Lender or any the Senior Issuing Bank pursuant to Section 5.06 5.03 (Taxes), then such Senior Lender, Swing Line LC Lender or Senior Issuing Bank, as the case may be, if requested by the Borrower in writing, shall use commercially reasonable efforts to designate a different lending office for funding or booking its Loans or issuing or maintaining its Letters of Credit hereunder or to assign its rights and obligations under the Financing Documents to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Senior Lender, the Swing Line LC Lender or such the Senior Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.03 5.01 (Increased Costs) or Section 5.06 5.03 (Taxes), as applicable, in the future and (ii) would not subject such Senior Lender, Swing Line LC Lender or such the Senior Issuing Bank, as the case may be, to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Senior Lender, Swing Line LC Lender or the Senior Issuing Bank in any material respect, contrary to such Senior LC Lender’s, Swing Line Lender’s 's or such the Senior Issuing Bank’s 's normal banking practices or violate any applicable Government Rule. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Senior Lender, the Swing Line LC Lender or such the Senior Issuing Bank, as the case may be, in connection with any such designation or assignment. (b) If any Senior LC Lender requests compensation under Section 5.03 5.01 (Increased Costs), or if the Borrower is required to pay any additional amount to any Senior LC Lender or any Government Authority for the account of any Senior LC Lender pursuant to Section 5.06 5.03 (Taxes) and, in each case, such Senior LC Lender has declined or is unable to designate a different lending office or to make an assignment in accordance with Section 5.04(a5.02(a), or if any Senior LC Lender is a Defaulting Lender, then, so long as no Default or Event of Default has occurred and is continuing, the Borrower may, at its sole expense and effort, upon notice in writing to such Senior LC Lender and the Senior LC Facility Administrative Agent, request such Senior LC Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 11.04 (Assignments)), all (but not less than all) its interests, rights and obligations under this Agreement (including all of its Senior LC Commitment, if any, its participations in Letters or Credit and the Loans at the time owing to it) to an Eligible Assignee that shall assume such obligations (which assignee may be a Senior LC Lender, if such Senior LC Lender accepts such assignment); provided that, (i) the Borrower shall have received the prior written consent of the Senior LC Facility Administrative Agent, (ii) such Senior LC Lender shall have received payment of an amount equal to all Obligations of the Borrower owing to such Senior LC Lender from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other Obligations) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 5.03 5.01 (Increased Costs), or payments required to be made pursuant to Section 5.06 5.03 (Taxes), such assignment will result in the elimination or reduction of such compensation or payments. A Senior LC Lender shall not be required to make any such assignment and delegation if, as a result of a waiver by such Senior LC Lender of its rights under Section 5.03 5.01 (Increased Costs) or Section 5.06 5.03 (Taxes), as applicable, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If, notwithstanding the satisfaction of each of the conditions set forth in Section 5.03 5.01 (Increased Costs) or Section 5.06 5.03 (Taxes), a Senior LC Lender refuses to be replaced pursuant to this Section 5.045.02, the Borrower shall not be obligated to pay such Senior LC Lender any of the compensation referred to in this Section 5.04 5.02 or any additional amounts incurred or accrued under Section 5.03 5.01 (Increased Costs) or Section 5.06 5.03 (Taxes) from and after the date that such replacement would have occurred but for such Senior LC Lender’s 's refusal. Nothing in this Section shall be deemed to prejudice any rights that the Borrower, the Senior LC Facility Administrative Agent, the Swing Line Lender, any Senior Issuing Bank or any Senior LC Lender may have against any Senior LC Lender that is a Defaulting Lender. (c) If (i) any Senior LC Lender (such Senior LC Lender, a “"Non-Consenting Lender”") has failed to consent to a proposed amendment, waiver, consent or termination which pursuant to the terms of Section 11.01 (

Obligation to Mitigate. (a) If any Senior Issuing Bank, Each Lender agrees that as promptly as practicable after it becomes aware of the Swing Line Lender or any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required occurrence of an event that would entitle it to pay any additional amount to any Senior Lender, any Senior Issuing Bank, the Swing Line Lender or any Government Authority for the account of any Senior Lender, the Swing Line Lender or any Senior Issuing Bank give notice pursuant to Section 5.06 (Taxes)SECTION 4.L, then such Senior Lender4.3 or 4.6, Swing Line Lender or Senior Issuing Bank, as the case may be, and in any event if so requested by the Borrower in writingBorrower, each Lender shall use commercially reasonable efforts to designate a different make, fund or maintain its affected Loans through another lending office for funding if as a result thereof the increased costs would be avoided or booking its Loans materially reduced or issuing or maintaining its Letters of Credit hereunder or the illegality would thereby cease to assign its rights exist and obligations under the Financing Documents to another of its offices, branches or Affiliates, if, in the reasonable judgment opinion of such Senior Lender, the Swing Line Lender making, funding or maintaining of such Senior Issuing Bank, Loans through such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.03 (Increased Costs) or Section 5.06 (Taxes), as applicable, in the future and (ii) other lending office would not subject such Senior Lender, Swing Line Lender or such Senior Issuing Bank, as the case may be, to in any material unreimbursed cost or expense and would not otherwise respect be disadvantageous to such Senior Lender, Swing Line Lender or the Senior Issuing Bank in any material respect, contrary to such Senior Lender’s, Swing Line Lender’s or such Senior Issuing Bank’s 's normal banking practices or violate any applicable Government Rulelaw or regulation. No change by a Lender in its Domestic Office or LIBOR Office made for such Lender's convenience shall result in any increased cost to the Borrower. The Borrower hereby agrees shall not be obligated to pay all reasonable costs and expenses incurred by compensate any Senior Lender, Lender for the Swing Line Lender or such Senior Issuing Bank, as the case may be, in connection with any such designation or assignment. (b) If any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay amount of any additional amount pursuant to SECTION 4.1, 4.3 or 4.6 accruing prior to the date which is 90 days before the date on which such Lender first notifies the Borrower that it intends to claim such compensation; it being understood that the calculation of the actual amounts may not be possible within such period and that such Lender may provide such calculation as soon as reasonably practicable thereafter without affecting or limiting the Borrower's payment obligation thereunder. If any Lender demands compensation pursuant to SECTION 4.1, 4.3 or 4.6 with respect to any Senior LIBO Rate Loan, the Borrower may, at any time upon at least one Business Days prior notice to such Lender or through the Administrative Agent, elect to convert such Loan into a Base Rate Loan. Thereafter, unless and until such Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply, all such LIBO Rate Loans by such Lender shall bear interest as Base Rate Loans, notwithstanding any Government Authority for prior election by the account Borrower to the contrary. If such Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply, the Borrower may elect that the principal amount of any Senior Lender pursuant to Section 5.06 (Taxes) and, in each case, such Senior Lender has declined or is unable to designate a different lending office or to make an assignment Loan again bear interest as LIBO Rate Loans in accordance with Section 5.04(a)this Agreement, or if any Senior Lender is a Defaulting Lender, then, so long as no Default or Event on the first day of Default has occurred and is continuingthe next succeeding Interest Period applicable to the related LIBO Rate Loans of other Lenders. Additionally, the Borrower may, at its sole expense and effortoption, upon at least five Business Days' prior notice in writing to such Senior Lender and the Senior Facility AgentLender, request such Senior Lender elect to assign and delegateprepay in full, without recourse (in accordance with and subject to the restrictions contained in Section 11.04 (Assignments))premium or penalty, all (but not less than all) its interests, rights and obligations under this Agreement (including all of its Commitment, if any, its participations in Letters or Credit and the Loans at the time owing to it) to an Eligible Assignee that shall assume such obligations (which assignee may be a Senior Lender, if such Senior Lender accepts such assignment); provided that, (i) 's affected LIBO Rate Loans. If the Borrower shall have received the prior written consent of the Senior Facility Agent, (ii) such Senior Lender shall have received payment of an amount equal elects to all Obligations of the Borrower owing to such Senior Lender from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other Obligations) and (iii) in the case of prepay any such assignment resulting from a claim for compensation under Section 5.03 (Increased Costs), or payments required to be made pursuant to Section 5.06 (Taxes), such assignment will result in the elimination or reduction of such compensation or payments. A Senior Lender shall not be required to make any such assignment and delegation if, as a result of a waiver by such Senior Lender of its rights under Section 5.03 (Increased Costs) or Section 5.06 (Taxes), as applicable, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If, notwithstanding the satisfaction of each of the conditions set forth in Section 5.03 (Increased Costs) or Section 5.06 (Taxes), a Senior Lender refuses to be replaced Loans pursuant to this Section 5.04SECTION 4.4, the Borrower shall not be obligated pay within ten Business Days after written demand any additional increased costs of such Lender accruing for the period prior to pay such Senior Lender any date of prepayment. If such conversion or prepayment is made on a day other than the last day of the compensation referred to in this Section 5.04 or any additional amounts incurred or accrued under Section 5.03 (Increased Costs) or Section 5.06 (Taxes) from and after the date that such replacement would have occurred but current Interest Period for such Senior Lender’s refusal. Nothing in this Section affected LIBO Rate Loans, such Lender shall be deemed entitled to prejudice any rights that make a request for, and the BorrowerBorrower shall pay, the Senior Facility Agent, the Swing Line Lender, any Senior Issuing Bank or any Senior Lender may have against any Senior Lender that is a Defaulting Lendercompensation under SECTION 4.5. (c) If (i) any Senior Lender (such Senior Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, consent or termination which pursuant to the terms of Section 11.01 (

Obligation to Mitigate. (a) If any Senior Issuing Bank, the Swing Line Lender or any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay any Indemnified Taxes or additional amount to any Senior Lender, any Senior Issuing Bank, the Swing Line Lender or any Government Authority for the account of any Senior Lender, the Swing Line Lender or any Senior Issuing Bank pursuant to Section 5.06 (Taxes)4.2, then such Senior Lender, Swing Line Lender or Senior Issuing Bank, as the case may be, if requested by the Borrower in writing, shall use commercially reasonable efforts to designate a different lending or issuing office for funding or booking its Senior Loans or issuing or maintaining its Letters of Credit hereunder or to assign its rights and obligations under the Financing Documents to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Senior Lender, the Swing Line Lender or such Senior Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.03 (Increased Costs) or Section 5.06 (Taxes)4.2, as applicable, in the future and (ii) would not subject such Senior Lender, Swing Line Lender or such Senior Issuing Bank, as the case may be, to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Senior Lender, Swing Line Lender or the Senior Issuing Bank in any material respect, contrary to such Senior Lender’s, Swing Line Lender’s or such Senior Issuing Bank’s normal banking practices or violate any applicable Government Rule. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Senior Lender, the Swing Line Lender or such Senior Issuing Bank, as the case may be, in connection with any such designation or assignment. (b) If any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay any Indemnified Taxes or additional amount to any Senior Lender or any Government Authority for the account of any Senior Lender pursuant to Section 5.06 (Taxes) 4.2 and, in each case, such Senior Lender has declined or is unable to designate a different lending or issuing office or to make an assignment in accordance with Section 5.04(a4.1(a), or if any Senior Lender is a Defaulting Lender, then, so long as no Default or Event of Default has occurred and is continuing, then the Borrower may, at its sole expense and effort, upon notice in writing to such Senior Lender and the Senior Facility Administrative Agent, request such Senior Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 11.04 (Assignments)12.4), all (but not less than all) its interests, rights (other than its existing rights to payments pursuant to Section 4.2) and obligations under this Agreement (including all of its Commitment, if any, its participations in Letters or Credit Senior Loans and the Loans at the time owing to itSenior Loan Commitments) to an Eligible Assignee assignee that shall assume such obligations (which assignee may be a another Senior Lender, if such a Senior Lender accepts such assignment); provided thatprovided, that (i) the Borrower shall have received the prior written consent of the Senior Facility Administrative Agent, (ii) such Senior Lender shall have received payment of an amount equal to all Obligations of the Borrower owing to such Senior Lender from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other Obligations) and ), (iii) in the case of any such assignment resulting from a claim for compensation under Section 5.03 (Increased Costs), or payments required to be made pursuant to Section 5.06 (Taxes)4.2, such |US-DOCS\143711048.26|| assignment will result in the elimination or reduction of such compensation or payments, and (iv) such assignment does not conflict with any applicable law binding upon or to which such Senior Lender is subject. A Senior Lender shall not be required to make any such assignment and delegation if, as a result of a waiver by such Senior Lender of its rights under Section 5.03 (Increased Costs) or Section 5.06 (Taxes), as applicable4.2, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If, notwithstanding the satisfaction of each of the conditions set forth in Section 5.03 (Increased Costs) or Section 5.06 (Taxes), a Senior Lender refuses to be replaced pursuant to this Section 5.04, the Borrower shall not be obligated to pay such Senior Lender any of the compensation referred to in this Section 5.04 or any additional amounts incurred or accrued under Section 5.03 (Increased Costs) or Section 5.06 (Taxes) from and after the date that such replacement would have occurred but for such Senior Lender’s refusal. Nothing in this Section shall be deemed to prejudice any rights that the Borrower, the Senior Facility Agent, the Swing Line Lender, any Senior Issuing Bank or any Senior Lender may have against any Senior Lender that is a Defaulting Lender. (c) If (i) any Senior Lender (such Senior Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, consent or termination which pursuant to the terms of Section 11.01 (

Obligation to Mitigate. (a) If any Senior Issuing Bank, the Swing Line Lender or any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay any Indemnified Taxes or additional amount to any Senior Lender, any Senior Issuing Bank, the Swing Line Lender or any Government Authority for the account of any Senior Lender, the Swing Line Lender or any Senior Issuing Bank pursuant to Section 5.06 (Taxes)4.2, then such Senior Lender, Swing Line Lender or Senior Issuing Bank, as the case may be, if requested by the Borrower in writing, shall use commercially reasonable efforts to designate a different lending or issuing office for funding or booking its Senior Loans or issuing or maintaining its Letters of Credit hereunder or to assign its rights and obligations under the Financing Documents to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Senior Lender, the Swing Line Lender or such Senior Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.03 (Increased Costs) or Section 5.06 (Taxes)4.2, as applicable, in the future and (ii) would not subject such Senior Lender, Swing Line Lender or such Senior Issuing Bank, as the case may be, to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Senior Lender, Swing Line Lender or the Senior Issuing Bank in any material respect, contrary to such Senior Lender’s, Swing Line Lender’s or such Senior Issuing Bank’s normal banking practices or violate any applicable Government Rule. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Senior Lender, the Swing Line Lender or such Senior Issuing Bank, as the case may be, in connection with any such designation or assignment. (b) If any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay any Indemnified Taxes or additional amount to any Senior Lender or any Government Authority for the account of any Senior Lender pursuant to Section 5.06 (Taxes) 4.2 and, in each case, such Senior Lender has declined or is unable to designate a different lending or issuing office or to make an assignment in accordance with Section 5.04(a4.1(a), or if any Senior Lender is a Defaulting Lender, then, so long as no Default or Event of Default has occurred and is continuing, then the Borrower may, at its sole expense and effort, upon notice in writing to such Senior Lender and the Senior Facility Administrative Agent, request such Senior Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 11.04 (Assignments)12.4), all (but not less than all) its interests, rights (other than its existing rights to payments pursuant to Section 4.2) and obligations under this Agreement (including all of its Commitment, if any, its participations in Letters or Credit Senior Loans and the Loans at the time owing to itSenior Loan Commitments) to an Eligible Assignee assignee that shall assume such obligations (which assignee may be a another Senior Lender, if such a Senior Lender accepts such assignment); provided thatprovided, that (i) the Borrower shall have received the prior written consent of the Senior Facility Administrative Agent, (ii) such Senior Lender shall have received payment of an amount equal to all Obligations of the Borrower owing to such Senior Lender from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other Obligations) and ), (iii) in the case of any such assignment resulting from a claim for compensation under Section 5.03 (Increased Costs), or payments required to be made pursuant to Section 5.06 (Taxes)4.2, such assignment will result in the elimination or reduction of such compensation or payments, and (iv) such assignment does not conflict with any applicable law binding upon or to which such Senior Lender is subject. A Senior Lender shall not be required to make any such assignment and delegation if, as a result of a waiver by such Senior Lender of its rights under Section 5.03 (Increased Costs) or Section 5.06 (Taxes), as applicable4.2, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If, notwithstanding the satisfaction of each of the conditions set forth in Section 5.03 (Increased Costs) or Section 5.06 (Taxes), a Senior Lender refuses to be replaced pursuant to this Section 5.04, the Borrower shall not be obligated to pay such Senior Lender any of the compensation referred to in this Section 5.04 or any additional amounts incurred or accrued under Section 5.03 (Increased Costs) or Section 5.06 (Taxes) from and after the date that such replacement would have occurred but for such Senior Lender’s refusal. Nothing in this Section shall be deemed to prejudice any rights that the Borrower, the Senior Facility Agent, the Swing Line Lender, any Senior Issuing Bank or any Senior Lender may have against any Senior Lender that is a Defaulting Lender. (c) If (i) any Senior Lender (such Senior Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, consent or termination which pursuant to the terms of Section 11.01 (

Obligation to Mitigate. (a) If any Senior Issuing Bank, the Swing Line Lender or any Senior Construction/Term Loan Lender requests compensation under Section 5.03 4.03 (Increased Costs), or if the Borrower is required to pay any additional amount to any Senior Lender, any Senior Issuing Bank, the Swing Line Construction/Term Loan Lender or any Government Authority for the account of any Senior Lender, the Swing Line Construction/Term Loan Lender or any Senior Issuing Bank pursuant to Section 5.06 4.06 (Taxes), then such Senior Construction/Term Loan Lender, Swing Line Lender or Senior Issuing Bank, as the case may be, if requested by the Borrower in writing, shall use commercially reasonable efforts to designate a different lending office for funding or booking its Construction/Term Loans or issuing or maintaining its Letters of Credit hereunder or to assign its rights and obligations under the Financing Documents to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Senior Construction/Term Loan Lender, the Swing Line Lender or such Senior Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.03 4.03 (Increased Costs) or Section 5.06 4.06 (Taxes), as applicable, in the future and (ii) would not subject such Senior Lender, Swing Line Construction/Term Loan Lender or such Senior Issuing Bank, as the case may be, to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Senior Lender, Swing Line Construction/Term Loan Lender or the Senior Issuing Bank in any material respect, contrary to such Senior Construction/Term Loan Lender’s, Swing Line Lender’s or such Senior Issuing Bank’s normal banking practices or violate any applicable Government Rule. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Senior Lender, the Swing Line Construction/Term Loan Lender or such Senior Issuing Bank, as the case may be, in connection with any such designation or assignment. (b) If Subject to Section 4.04(c), if any Senior Construction/Term Loan Lender requests compensation under Section 5.03 4.03 (Increased Costs), or if the Borrower is required to pay any additional amount to any Senior Construction/Term Loan Lender or any Government Authority for the account of any Senior Construction/Term Loan Lender pursuant to Section 5.06 4.06 (Taxes) and, in each case, such Senior Construction/Term Loan Lender has declined or is unable to designate a different lending office or to make an assignment in accordance with Section 5.04(a4.04(a), or if any Senior Construction/Term Loan Lender is a Defaulting Lender, then, so long as no Default or Event of Default has occurred and is continuing, then the Borrower may, at its sole expense and effort, upon notice in writing to such Senior Construction/Term Loan Lender and the Senior Facility Term Loan A Administrative Agent, request such Senior Construction/Term Loan Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 11.04 10.04 (Assignments)), all (but not less than all) its interests, rights and obligations under this Agreement (including all of its Commitment, if any, its participations in Letters or Credit Construction/Term Loans and the Loans at the time owing to itConstruction/Term Loan Commitments) to an Eligible Assignee that shall assume such obligations (which assignee may be a Senior another Construction/Term Loan Lender, if such Senior a Construction/Term Loan Lender accepts such assignment); provided that, that (i) the Borrower shall have received the prior written consent of the Senior Facility Term Loan A Administrative Agent, (ii) such Senior Construction/Term Loan Lender shall have received payment of an amount equal to all Obligations of the Borrower owing to such Senior Construction/Term Loan Lender from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other Obligations) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 5.03 4.03 (Increased Costs), ) or payments required to be made pursuant to Section 5.06 4.06 (Taxes), such assignment will result in the elimination or reduction of such compensation or payments. A Senior Construction/Term Loan Lender shall not be required to make any such assignment and delegation if, as a result of a waiver by such Senior Construction/Term Loan Lender of its rights under Section 5.03 Sections 4.03 (Increased Costs) or Section 5.06 4.06 (Taxes), as applicable, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If, notwithstanding the satisfaction of each of the conditions set forth in Section 5.03 Sections 4.03 (Increased Costs) or Section 5.06 4.06 (Taxes), a Senior Construction/Term Loan Lender refuses to be replaced pursuant to this Section 5.044.04, the Borrower shall not be obligated to pay such Senior Construction/Term Loan Lender any of the compensation referred to in this Section 5.04 4.04 or any additional amounts incurred or accrued under Section 5.03 Sections 4.03 (Increased Costs) or Section 5.06 4.06 (Taxes) from and after the date that such replacement would have occurred but for such Senior Construction/Term Loan Lender’s refusal. Nothing in this Section shall be deemed to prejudice any rights that the Borrower, the Senior Facility Agent, the Swing Line Lender, any Senior Issuing Bank Term Loan A Administrative Agent or any Senior Construction/Term Loan Lender may have against any Senior Construction/Term Loan Lender that is a Defaulting Lender. (c) As a condition of the right of the Borrower to remove any Construction/Term Loan Lender pursuant to Section 4.04(b) and (d), the Borrower shall either (i) arrange for the assignment or novation of any Interest Rate Protection Agreements with such Construction/Term Loan Lender or any of its Affiliates simultaneously with such removal or (ii) terminate the applicable Interest Rate Protection Agreement and pay any relevant Term Loan A Hedge Termination Value. (d) If (i) any Senior Construction/Term Loan Lender (such Senior Construction/Term Loan Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, consent or termination which pursuant to the terms of Section 11.01 10.01 (

Obligation to Mitigate. (a) If any Senior Issuing Bank, the Swing Line Lender or any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay any Indemnified Taxes or additional amount to any Senior Lender, any Senior Issuing Bank, the Swing Line Lender or any Government Authority for the account of any Senior Lender, the Swing Line Lender or any Senior Issuing Bank pursuant to Section 5.06 (Taxes)4.2, then such Senior Lender, Swing Line Lender or Senior Issuing Bank, as the case may be, if requested by the Borrower in writing, shall use commercially reasonable efforts to designate a different lending or issuing office for funding or booking its Senior Loans or issuing or maintaining its Letters of Credit hereunder or to assign its rights and obligations under the Financing Documents to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Senior Lender, the Swing Line Lender or such Senior Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.03 (Increased Costs) or Section 5.06 (Taxes)4.2, as applicable, in the future and (ii) would not subject such Senior Lender, Swing Line Lender or such Senior Issuing Bank, as the case may be, to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Senior Lender, Swing Line Lender or the Senior Issuing Bank in any material respect, contrary to such Senior Lender’s, Swing Line Lender’s or such Senior Issuing Bank’s normal banking practices or violate any applicable Government Rule. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Senior Lender, the Swing Line Lender or such Senior Issuing Bank, as the case may be, in connection with any such designation or assignment. (b) If any Senior Lender requests compensation under Section 5.03 (Increased Costs), or if the Borrower is required to pay any Indemnified Taxes or additional amount to any Senior Lender or any Government Authority for the account of any Senior Lender pursuant to Section 5.06 (Taxes) 4.2 and, in each case, such Senior Lender has declined or is unable to designate a different lending or issuing office or to make an assignment in accordance with Section 5.04(a4.1(a), or if any Senior Lender is a Defaulting Lender, then, so long as no Default or Event of Default has occurred and is continuing, then the Borrower may, at its sole expense and effort, upon notice in writing to such Senior Lender and the Senior Facility Administrative Agent, request such Senior Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 11.04 (Assignments)12.4), all (but not less than all) its interests, rights (other than its existing rights to payments pursuant to Section 4.2) and obligations under this Agreement (including all of its Commitment, if any, its participations in Letters or Credit Senior Loans and the Loans at the time owing to itSenior Loan Commitments) to an Eligible Assignee assignee that shall assume such obligations (which assignee may be a another Senior Lender, if such a Senior Lender accepts such assignment); provided thatprovided, (i) that the Borrower shall have received the prior written consent of the Senior Facility Administrative Agent, (ii) such Senior Lender shall have received payment of an amount equal to all Obligations of the Borrower owing to such Senior Lender from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other Obligations) and (iii) ), in the case of any such assignment resulting from a claim for compensation under Section 5.03 (Increased Costs), or payments required to be made pursuant to Section 5.06 (Taxes)4.2, such assignment will result in the elimination or reduction of such compensation or payments, and such assignment does not conflict with any applicable law binding upon or to which such Senior Lender is subject. A Senior Lender shall not be required to make any such assignment and delegation if, as a result of a waiver by such Senior Lender of its rights under Section 5.03 (Increased Costs) or Section 5.06 (Taxes), as applicable4.2, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. If, notwithstanding the satisfaction of each of the conditions set forth in Section 5.03 (Increased Costs) or Section 5.06 (Taxes), a Senior Lender refuses to be replaced pursuant to this Section 5.04, the Borrower shall not be obligated to pay such Senior Lender any of the compensation referred to in this Section 5.04 or any additional amounts incurred or accrued under Section 5.03 (Increased Costs) or Section 5.06 (Taxes) from and after the date that such replacement would have occurred but for such Senior Lender’s refusal. Nothing in this Section shall be deemed to prejudice any rights that the Borrower, the Senior Facility Agent, the Swing Line Lender, any Senior Issuing Bank or any Senior Lender may have against any Senior Lender that is a Defaulting Lender. (c) If (i) any Senior Lender (such Senior Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, consent or termination which pursuant to the terms of Section 11.01 (