SHALL BE REQUIRED TO BE PAID TO A CREDITOR PARTY UNDER THIS
SECTION WITH RESPECT TO BACKUP WITHHOLDING IF THERE HAS BEEN A NOTIFIED
UNDERREPORTING PURSUANT TO SECTION 3406(A)(1)(C) OF THE CODE (OR SIMILAR
PROVISION OR SUCCESSOR PROVISION) WITH RESPECT TO SUCH CREDITOR PARTY.
6.3.6
PRE-EXISTING WITHHOLDING REQUIREMENTS.
THE
BORROWERS AND GUARANTORS SHALL NOT BE REQUIRED TO INDEMNIFY ANY NON-U.S. LENDER,
OR PAY ANY ADDITIONAL AMOUNTS TO ANY NON-U.S. LENDER, IN RESPECT OF UNITED
STATES FEDERAL WITHHOLDING TAX PURSUANT TO THIS CREDIT AGREEMENT TO THE EXTENT
THAT THE OBLIGATION TO WITHHOLD AMOUNTS WITH RESPECT TO UNITED STATES FEDERAL
WITHHOLDING TAX EXISTED ON THE DATE SUCH NON-U.S. LENDER BECAME A PARTY TO THIS
CREDIT AGREEMENT OR, WITH RESPECT TO PAYMENTS TO A NEW LENDING OFFICE, THE DATE
SUCH NON-U.S. LENDER DESIGNATED SUCH NEW LENDING OFFICE WITH RESPECT TO THE
LOANS; PROVIDED, HOWEVER, THAT THIS CLAUSE SHALL NOT APPLY TO THE EXTENT (I) THE
INDEMNITY PAYMENT OR ADDITIONAL AMOUNTS ANY TRANSFEREE OR ASSIGNEE OF ANY
CREDITOR PARTY, OR ANY CREDITOR PARTY THROUGH A NEW LENDING OFFICE, WOULD BE
ENTITLED TO RECEIVE (WITHOUT REGARD TO THIS CLAUSE (I)) DO NOT EXCEED THE
INDEMNITY PAYMENT OR ADDITIONAL AMOUNTS THAT THE PERSON MAKING THE ASSIGNMENT OR
TRANSFER TO SUCH TRANSFEREE OR ASSIGNEE, OR CREDITOR PARTY MAKING THE
DESIGNATION OF SUCH NEW LENDING OFFICE, WOULD HAVE BEEN ENTITLED TO RECEIVE IN
THE ABSENCE OF SUCH ASSIGNMENT, TRANSFER OR DESIGNATION, OR (II) THE OBLIGATION
TO PAY SUCH ADDITIONAL AMOUNTS WOULD NOT HAVE ARISEN BUT FOR A FAILURE BY SUCH
NON-U.S. LENDER TO COMPLY WITH THE PROVISIONS OF SECTION 6.3.4.
6.3.7
MITIGATION.
ANY CREDITOR PARTY CLAIMING ANY
INDEMNITY PAYMENT OR ADDITIONAL PAYMENT AMOUNTS PAYABLE PURSUANT TO THIS
SECTION SHALL USE REASONABLE EFFORTS (CONSISTENT WITH LEGAL AND REGULATORY
RESTRICTIONS), AT THE BORROWERS' AND GUARANTORS' EXPENSE, (A) TO FILE ANY
CERTIFICATE OR DOCUMENT REASONABLY REQUESTED IN WRITING BY THE BORROWERS, OR
(B) TO CHANGE THE JURISDICTION OF ITS APPLICABLE LENDING OFFICE IF THE MAKING OF
SUCH A FILING OR CHANGE (I) WOULD AVOID THE NEED FOR OR REDUCE THE AMOUNT
46
OF ANY SUCH INDEMNITY PAYMENT OR ADDITIONAL AMOUNT WHICH MAY THEREAFTER ACCRUE,
(II) WOULD NOT REQUIRE SUCH CREDITOR PARTY TO DISCLOSE ANY INFORMATION SUCH
CREDITOR PARTY DEEMS CONFIDENTIAL AND (III) WOULD NOT, IN THE SOLE DETERMINATION
OF SUCH CREDITOR PARTY, BE OTHERWISE DISADVANTAGEOUS TO SUCH CREDITOR PARTY.
6.3.8
REFUNDS.
IF ANY CREDITOR PARTY (INCLUDING A
TRANSFEREE) DETERMINES IN ITS SOLE DISCRETION THAT IT IS ENTITLED TO CLAIM A
REFUND FROM A GOVERNMENTAL AUTHORITY IN RESPECT OF COVERED TAXES OR OTHER TAXES
WITH RESPECT TO WHICH ANY OF THE BORROWERS OR GUARANTORS HAS PAID ADDITIONAL
AMOUNTS PURSUANT TO THIS SECTION, IT WILL PROMPTLY NOTIFY THE APPLICABLE
BORROWER OR GUARANTOR OF THE AVAILABILITY OF SUCH REFUND CLAIM AND SHALL, WITHIN
TWENTY (20) DAYS AFTER RECEIPT OF A WRITTEN REQUEST BY SUCH BORROWER OR
GUARANTOR, MAKE A CLAIM TO THE GOVERNMENTAL AUTHORITY FOR SUCH REFUND AT SUCH
BORROWER'S OR GUARANTOR'S EXPENSE.
IF ANY CREDITOR PARTY RECEIVES A REFUND
(INCLUDING A REFUND