IN RESPECT OF ANY LENDER THAT INTENDS TO
BECOME A LENDER AFTER THE ACHIEVEMENT OF SUCCESSFUL SYNDICATION, SUBJECT TO THE
PROVISIONS OF PARAGRAPH (A) OF CLAUSE 37.3 (ASSIGNMENTS AND TRANSFERS), TO
REFUSE TO GRANT ITS CONSENT TO SUCH TRANSFER.
(G)
IN THE EVENT THAT EITHER THE FACILITY AGENT
OR THE COMPANY HAS REASON TO BELIEVE THAT ANY REPRESENTATION GIVEN BY A LENDER
IN ACCORDANCE WITH CLAUSE 17.2 (LENDER TAX STATUS) IS INCORRECT OR INACCURATE,
THE FACILITY AGENT OR THE COMPANY (AS THE CASE MAY BE) SHALL PROMPTLY INFORM THE
OTHER PARTY AND THE RELEVANT LENDER, AND MAY THEREAFTER REQUEST SUCH
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DOCUMENTS RELATING TO THE
CORPORATE AND TAX STATUS OF SUCH LENDER AS THE
FACILITY AGENT OR THE COMPANY MAY REASONABLY REQUIRE FOR THE PURPOSES OF
DETERMINING WHETHER OR NOT SUCH REPRESENTATION WAS INDEED INCORRECT.
(H)
IF, FOLLOWING DELIVERY OF SUCH DOCUMENTATION
AND FOLLOWING CONSULTATION BETWEEN THE FACILITY AGENT, THE COMPANY AND THE
RELEVANT LENDER, THE COMPANY CONCLUDES (ACTING REASONABLY AND IN GOOD FAITH)
THAT THERE IS INSUFFICIENT EVIDENCE TO DETERMINE THE RELEVANT TAX STATUS OF SUCH
LENDER, THE COMPANY MAY REQUIRE THE RELEVANT BORROWER TO WHOM SUCH LENDER HAS
MADE ADVANCES TO NOVATE ITS OBLIGATIONS UNDER SUCH ADVANCES IN ACCORDANCE WITH
PARAGRAPH (D) OF CLAUSE 37.3 (ASSIGNMENT OR TRANSFERS BY LENDER) TO ANOTHER
BORROWER.
17.3
TAX INDEMNITY
(A)
SUBJECT TO PARAGRAPH (B) OF THIS CLAUSE,
THE COMPANY SHALL (WITHIN 5 BUSINESS DAYS OF DEMAND BY THE FACILITY AGENT) PAY
(OR PROCURE THAT EITHER THE PARENT OR THE RELEVANT OBLIGOR PAYS) FOR THE ACCOUNT
OF A PROTECTED PARTY AN AMOUNT EQUAL TO ANY TAX LIABILITY WHICH THAT PROTECTED
PARTY REASONABLY DETERMINES HAS BEEN OR WILL BE SUFFERED BY THAT PROTECTED PARTY
(DIRECTLY OR INDIRECTLY) IN CONNECTION WITH ANY FINANCE DOCUMENT.
(B)
PARAGRAPH (A) OF THIS CLAUSE SHALL NOT
APPLY:
(I)
WITH RESPECT TO ANY TAX LIABILITY OF A
PROTECTED PARTY IN RESPECT OF TAX ON OVERALL NET INCOME OF THAT PROTECTED PARTY;
(II)
TO THE EXTENT THAT ANY TAX LIABILITY HAS
BEEN COMPENSATED FOR BY AN INCREASED PAYMENT OR OTHER PAYMENT UNDER PARAGRAPHS
(C) OR (D) OF CLAUSE 17.1 (TAX GROSS-UP) OR WOULD HAVE BEEN COMPENSATED FOR BY
SUCH AN INCREASED PAYMENT OR OTHER PAYMENT, BUT FOR THE APPLICATION OF PARAGRAPH
(F) OF CLAUSE 17.1 (TAX GROSS-UP); OR
(III)
UNTIL THE MERGER CLOSING DATE HAS OCCURRED.
(C)
A PROTECTED PARTY MAKING, OR INTENDING TO
MAKE, A CLAIM PURSUANT TO PARAGRAPH (A) OF THIS CLAUSE 17.3 SHALL PROMPTLY
NOTIFY THE FACILITY AGENT OF THE EVENT WHICH WILL GIVE, OR HAS GIVEN, RISE TO
THE CLAIM TOGETHER WITH SUPPORTING EVIDENCE, FOLLOWING WHICH THE FACILITY AGENT
SHALL NOTIFY THE COMPANY AND PROVIDE SUCH EVIDENCE TO IT.
(D)
A PROTECTED PARTY SHALL, ON RECEIVING A
PAYMENT FROM EITHER THE PARENT OR AN OBLIGOR UNDER THIS CLAUSE 17.3, NOTIFY THE
FACILITY AGENT.
(E)
IN THIS CLAUSE 17.3:
"Tax Liability" means, in respect of any Protected Party:
(I)
ANY LIABILITY OR ANY INCREASE IN THE
LIABILITY OF THAT PERSON TO MAKE ANY PAYMENT OF OR