Nautilus 2007 Annual Report Download - page 122

3.9 Compensation . Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of its right to demand such compensation, but Borrowers shall not be required to compensate a Lender or Issuing Bank for
any increased costs incurred or reductions suffered more than nine months prior to the date that the Lender or Issuing Bank notifies Borrower
Agent of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof).
3.10 Mitigation . If any Lender gives a notice under Section 3.5 or requests compensation under Section 3.7 , or if Borrowers are required
to pay additional amounts with respect to a Lender under Section 5.9 , then such Lender shall use reasonable efforts to designate a different
Lending Office 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 (a) would eliminate the need for such notice or reduce amounts payable in the future, as applicable; and
(b) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. Borrowers agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment.
3.11 Delay in Requests . Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to Sections 3.4
or 3.9 shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation, provided
that Borrowers shall not
be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs incurred or reductions occurring more
than one hundred eighty (180) days prior to the date that such Lender or the Issuing Bank, as the case may be, obtains actual knowledge or notice
of the event giving rise to such Lender’s or Issuing Bank’
s claim for compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the one hundred eighty (180) day period referred to above shall be extended to include the
period of retroactive effect thereof).
3.12 Funding Losses . If for any reason (other than default by a Lender) (a) any Borrowing of, or conversion to or continuation of, a
LIBOR Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not
withdrawn), (b) any repayment or conversion of a LIBOR Loan occurs on a day other than the end of its Interest Period, or (c) Borrowers fail to
repay a LIBOR Loan when required hereunder, then Borrowers shall pay to Agent its customary administrative charge and to each Lender all
losses and expenses that it sustains as a consequence thereof, including loss of anticipated profits and any loss or expense arising from
liquidation or redeployment of funds or from fees payable to terminate deposits of matching funds. Lenders shall not be required to purchase
Dollar deposits in the London interbank market or any other offshore Dollar market to fund any LIBOR Loan, but the provisions hereof shall be
deemed to apply as if each Lender had purchased such deposits to fund its LIBOR Loans.
3.13 Maximum Interest . Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (“ maximum rate ”).
If
Agent or any Lender shall receive interest in an amount that exceeds the maximum rate, the excess interest shall be applied to the principal of the
Obligations or, if it exceeds such unpaid principal, refunded to Borrowers. In determining whether the interest contracted for, charged or
received by Agent or a Lender exceeds the maximum rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any
payment that is not principal as an expense, fee or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof; and
(c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
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