TIME BY THE RELEVANT UNITED STATES TAXING AUTHORITIES) AS MAY BE
(I) REASONABLY REQUESTED BY THE BORROWER OR THE AGENT AND (II) REQUIRED AND
PERMITTED UNDER THEN-CURRENT UNITED STATES LAW OR REGULATIONS TO AVOID UNITED
STATES WITHHOLDING TAXES ON PAYMENTS IN RESPECT OF ALL PAYMENTS TO BE RECEIVED
BY SUCH LENDER HEREUNDER. UPON THE REQUEST OF THE BORROWER OR THE AGENT, EACH
LENDER THAT IS A UNITED STATES PERSON (AS SUCH TERM IS DEFINED IN
SECTION 7701(A)(30) OF THE CODE) SHALL SUBMIT TO THE BORROWER AND THE AGENT A
CERTIFICATE ON INTERNAL REVENUE SERVICE FORM W-9 OR SUCH SUBSTITUTE FORM AS IS
REASONABLY SATISFACTORY TO THE BORROWER AND THE AGENT TO THE EFFECT THAT IT IS
SUCH A UNITED STATES PERSON.
39
(F)
WITHOUT DUPLICATION OF ANY AMOUNTS PAID
PURSUANT TO SECTION 2.28(A), IF THE BORROWER SHALL BE REQUIRED BY LAW OR
REGULATION TO MAKE ANY DEDUCTION, WITHHOLDING OR BACKUP WITHHOLDING OF ANY
TAXES, LEVIES, IMPOSTS, DUTIES, FEES, LIABILITIES OR SIMILAR CHARGES OF THE
UNITED STATES OF AMERICA, ANY POSSESSION OR TERRITORY OF THE UNITED STATES OF
AMERICA (INCLUDING THE COMMONWEALTH OF PUERTO RICO) OR ANY AREA SUBJECT TO THE
JURISDICTION OF THE UNITED STATES OF AMERICA FROM ANY PAYMENTS TO A LENDER
PURSUANT TO ANY LOAN DOCUMENT IN RESPECT OF THE OBLIGATIONS PAYABLE TO SUCH
LENDER THEN OR THEREAFTER OUTSTANDING, THE BORROWER SHALL MAKE SUCH WITHHOLDINGS
OR DEDUCTIONS AND PAY THE FULL AMOUNT WITHHELD OR DEDUCTED TO THE RELEVANT
TAXATION AUTHORITY OR OTHER AUTHORITY IN ACCORDANCE WITH APPLICABLE LAW.
(G)
IF THE AGENT OR A LENDER DETERMINES, IN ITS
SOLE DISCRETION, THAT IT HAS RECEIVED A REFUND OF ANY TAXES OR OTHER TAXES AS TO
WHICH IT HAS BEEN INDEMNIFIED BY THE BORROWER OR WITH RESPECT TO WHICH THE
BORROWER HAS PAID ADDITIONAL AMOUNTS PURSUANT TO THIS SECTION 2.28, IT SHALL PAY
OVER SUCH REFUND TO THE BORROWER (BUT ONLY TO THE EXTENT OF INDEMNITY PAYMENTS
MADE, OR ADDITIONAL AMOUNTS PAID, BY SUCH BORROWER UNDER THIS SECTION 2.28 WITH
RESPECT TO THE TAXES OR OTHER TAXES GIVING RISE TO SUCH REFUND), NET OF ALL
OUT-OF-POCKET EXPENSES OF THE AGENT OR SUCH LENDER AND WITHOUT INTEREST (OTHER
THAN ANY INTEREST PAID BY THE RELEVANT GOVERNMENTAL AUTHORITY WITH RESPECT TO
SUCH REFUND); PROVIDED, HOWEVER, THAT THE BORROWER, UPON THE REQUEST OF THE
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 AGENT OR SUCH LENDER IN THE EVENT THE AGENT OR
SUCH LENDER IS REQUIRED TO REPAY SUCH REFUND TO SUCH GOVERNMENTAL AUTHORITY.
THIS SUBSECTION (G) SHALL NOT BE CONSTRUED TO REQUIRE THE AGENT OR ANY LENDER TO
MAKE AVAILABLE ITS TAX RETURNS (OR ANY OTHER INFORMATION RELATING TO ITS TAXES
WHICH IT DEEMS CONFIDENTIAL) TO THE BORROWER OR ANY OTHER PERSON.
(H)
EACH LENDER HEREBY AGREES THAT, UPON THE
OCCURRENCE OF ANY CIRCUMSTANCES ENTITLING SUCH LENDER TO INDEMNIFICATION
PURSUANT TO THIS SECTION 2.28, SUCH LENDER SHALL USE REASONABLE EFFORTS