THE ACCOUNT
OF ANY NON-U.S. LENDER THAT HAS NOT PROVIDED TO THE BORROWER SUCH FORMS OR SUCH
EXEMPTION CERTIFICATE AND RELATED DOCUMENTATION THAT ESTABLISH A COMPLETE
EXEMPTION FROM SUCH DEDUCTION OR WITHHOLDING AND (Y) THE BORROWER SHALL NOT BE
OBLIGATED PURSUANT TO SECTION 4.5(A) TO GROSS-UP PAYMENTS TO BE MADE TO A LENDER
IN RESPECT OF TAXES IMPOSED BY THE UNITED STATES OR ANY ADDITIONAL AMOUNTS WITH
RESPECT THERETO (I) TO THE EXTENT SUCH TAXES RESULT FROM A LENDER'S FAILURE TO
PROVIDE THE BORROWER THE INTERNAL REVENUE SERVICE FORMS REQUIRED TO BE PROVIDED
TO THE BORROWER PURSUANT TO THIS SECTION 4.5(B) OR (II) TO THE EXTENT THAT SUCH
FORMS DO NOT ESTABLISH A COMPLETE EXEMPTION FROM WITHHOLDING OF SUCH TAXES AT
THE TIME THE LENDER FIRST BECAME A LENDER UNDER THIS AGREEMENT.
THE BORROWER
AGREES TO PAY ADDITIONAL AMOUNTS AND INDEMNIFY EACH LENDER IN THE MANNER SET
FORTH IN SECTION 4.5(A) (WITHOUT REGARD TO THE IDENTITY OF THE JURISDICTION
REQUIRING THE DEDUCTION OR WITHHOLDING) IN RESPECT OF ANY TAXES DEDUCTED OR
WITHHELD BY IT AS A RESULT OF ANY CHANGES AFTER THE CLOSING DATE IN ANY
APPLICABLE LAW, TREATY, GOVERNMENTAL RULE, REGULATION, GUIDELINE OR ORDER, OR IN
THE INTERPRETATION THEREOF, RELATING TO THE DEDUCTING OR WITHHOLDING OF INCOME
OR SIMILAR TAXES.
(C)
THE BORROWER WILL INDEMNIFY AND HOLD HARMLESS THE ADMINISTRATIVE
AGENT AND EACH LENDER, AND REIMBURSE EACH UPON ITS WRITTEN REQUEST WITHIN 30
DAYS THEREOF, FOR THE AMOUNT OF ANY DOCUMENTARY, EXCISE, STAMP, PROPERTY OR
OTHER SIMILAR TAXES, DUTIES, FEES, ASSESSMENTS OR OTHER CHARGES IMPOSED WITH
RESPECT TO THE EXECUTION, DELIVERY, FILING OR ENFORCEMENT OF ANY CREDIT
DOCUMENT.
47
(D)
IF ANY LENDER, IN ITS SOLE OPINION, DETERMINES THAT IT HAS FINALLY
AND IRREVOCABLY RECEIVED OR BEEN GRANTED A REFUND IN RESPECT OF ANY TAXES PAID
AS TO WHICH INDEMNIFICATION HAS BEEN PAID BY THE BORROWER PURSUANT TO THIS
SECTION, IT SHALL PROMPTLY REMIT SUCH REFUND (INCLUDING ANY INTEREST RECEIVED IN
RESPECT THEREOF), NET OF ALL OUT-OF-POCKET COSTS AND EXPENSES; PROVIDED, THAT
THE BORROWER AGREES TO PROMPTLY RETURN ANY SUCH REFUND (PLUS INTEREST) TO SUCH
LENDER IF SUCH LENDER IS REQUIRED TO REPAY SUCH REFUND TO THE RELEVANT TAXING
AUTHORITY. ANY SUCH LENDER SHALL PROVIDE THE BORROWER WITH A COPY OF ANY NOTICE
OF ASSESSMENT FROM THE RELEVANT TAXING AUTHORITY (REDACTING ANY UNRELATED
CONFIDENTIAL INFORMATION CONTAINED THEREIN) REQUIRING REPAYMENT OF SUCH
REFUND.
NOTHING CONTAINED HEREIN SHALL IMPOSE AN OBLIGATION ON ANY LENDER TO
APPLY FOR ANY SUCH REFUND.
(E)
IF THE BORROWER IS REQUIRED TO PAY ADDITIONAL AMOUNTS TO THE
ADMINISTRATIVE AGENT OR ANY LENDER PURSUANT TO THIS SECTION 4.5, THEN THE
ADMINISTRATIVE AGENT OR SUCH LENDER SHALL USE REASONABLE EFFORTS (CONSISTENT
WITH LEGAL AND REGULATORY RESTRICTIONS) TO CHANGE THE JURISDICTION OF ITS
OFFICE, BRANCH, SUBSIDIARY OR AFFILIATE, OR TAKE OTHER APPROPRIATE ACTION, SO AS
TO ELIMINATE ANY ADDITIONAL PAYMENT BY THE BORROWER THAT MAY THEREAFTER ACCRUE,
IF SUCH CHANGE OR OTHER ACTION, IN THE JUDGMENT OF THE ADMINISTRATIVE AGENT OR
SUCH LENDER, AS THE CASE MAY BE,