SUCH LENDER FIRST MADE DEMAND THEREFOR.
(B)
INTEREST AND PENALTIES.
IF BORROWER FAILS TO PAY ANY TAXES WHEN
DUE TO THE APPROPRIATE TAXING AUTHORITY OR FAILS TO REMIT TO ADMINISTRATIVE
AGENT, FOR THE ACCOUNT OF ADMINISTRATIVE AGENT AND THE RESPECTIVE LENDERS, THE
REQUIRED RECEIPTS OR OTHER REQUIRED DOCUMENTARY EVIDENCE, BORROWER SHALL
INDEMNIFY ADMINISTRATIVE AGENT AND LENDERS FOR ANY INCREMENTAL TAXES, INTEREST
OR PENALTIES THAT MAY BECOME PAYABLE BY ADMINISTRATIVE AGENT OR ANY LENDER AS A
RESULT OF ANY SUCH FAILURE.
(C)
FOREIGN LENDERS.
EACH LENDER THAT IS ORGANIZED UNDER THE LAWS OF
A JURISDICTION OTHER THAN THE UNITED STATES AND IS A PARTY HERETO ON THE CLOSING
DATE OR PURPORTS TO BECOME AN ASSIGNEE OF AN INTEREST PURSUANT TO
SECTION 11.6(A) AFTER THE CLOSING DATE (UNLESS SUCH LENDER WAS ALREADY A LENDER
HEREUNDER IMMEDIATELY PRIOR TO SUCH ASSIGNMENT) (EACH SUCH LENDER A "FOREIGN
LENDER") SHALL EXECUTE AND DELIVER TO EACH OF BORROWER AND ADMINISTRATIVE AGENT
(AS BORROWER OR ADMINISTRATIVE AGENT MAY REASONABLY REQUEST) ONE OR MORE UNITED
STATES INTERNAL REVENUE SERVICE FORMS W-8ECI, W-8BEN, W-8IMY (AS APPLICABLE) AND
OTHER APPLICABLE FORMS, CERTIFICATES OR DOCUMENTS PRESCRIBED BY THE UNITED
STATES INTERNAL REVENUE SERVICE OR REASONABLY REQUESTED BY ADMINISTRATIVE AGENT
CERTIFYING AS TO SUCH LENDER'S ENTITLEMENT TO A COMPLETE EXEMPTION FROM
WITHHOLDING OR DEDUCTION OF TAXES.
IN THE EVENT THAT ADMINISTRATIVE AGENT OR
BORROWER RECEIVED AN APPLICABLE INTERNAL REVENUE SERVICE FORM, CERTIFICATE OR
DOCUMENT FROM A FOREIGN LENDER IN CONNECTION WITH A PRIOR TRANSACTION,
ADMINISTRATIVE AGENT AND BORROWER SHALL BE ENTITLED TO RELY ON THE STATEMENTS OF
SUCH FOREIGN LENDER SET FORTH IN SUCH FORM, CERTIFICATE OR DOCUMENT UNTIL SUCH
FOREIGN LENDER DELIVERS TO ADMINISTRATIVE AGENT OR BORROWER A NEW FORM,
CERTIFICATE OR DOCUMENT IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
BORROWER SHALL NOT BE REQUIRED TO PAY ADDITIONAL AMOUNTS TO ANY
LENDER PURSUANT TO THIS SECTION 2.18 WITH RESPECT TO UNITED STATES WITHHOLDING
AND INCOME TAXES TO THE EXTENT THAT THE OBLIGATION TO PAY SUCH ADDITIONAL
AMOUNTS WOULD NOT
38
HAVE ARISEN BUT FOR THE FAILURE OF SUCH LENDER TO COMPLY WITH THIS PARAGRAPH
OTHER THAN AS A RESULT OF A CHANGE IN LAW.
(D)
IF THE ADMINISTRATIVE AGENT OR A LENDER DETERMINES, IN ITS SOLE
DISCRETION, THAT IT HAS RECEIVED A REFUND OF TAXES (I) PREVIOUSLY PAID BY IT AND
AS TO WHICH IT HAS BEEN INDEMNIFIED OR (II) PREVIOUSLY PAID BY THE BORROWER AS
ADDITIONAL AMOUNTS PURSUANT TO THIS SECTION 2.18, THE ADMINISTRATIVE AGENT OR
THE LENDER, AS THE CASE MAY BE, SHALL PAY TO THE BORROWER AN AMOUNT EQUAL TO
SUCH REFUND (BUT ONLY TO THE EXTENT OF INDEMNITY PAYMENTS MADE, OR ADDITIONAL
AMOUNTS PAID, BY OR ON BEHALF OF THE BORROWER UNDER THIS SECTION 2.18 WITH
RESPECT TO TAXES GIVING RISE TO SUCH REFUND), NET OF ALL OUT-OF-POCKET EXPENSES
OF THE ADMINISTRATIVE AGENT OR SUCH LENDER, AS THE CASE MAY BE, AND WITHOUT
INTEREST (OTHER THAN ANY INTEREST PAID BY THE RELEVANT GOVERNMENTAL AUTHORITY
WITH RESPECT TO SUCH REFUND), PROVIDED, HOWEVER, THAT THE BORROWER,