THE
BORROWER SHALL BE ENTITLED, TO THE EXTENT IT IS REQUIRED TO DO SO BY LAW, TO
DEDUCT OR WITHHOLD TAXES IMPOSED BY THE UNITED STATES (OR ANY POLITICAL
SUBDIVISION OR TAXING AUTHORITY THEREOF OR THEREIN) FROM INTEREST, FEES OR OTHER
AMOUNTS PAYABLE HEREUNDER FOR THE ACCOUNT OF ANY LENDER WHICH IS NOT A UNITED
STATES PERSON (AS SUCH TERM IS DEFINED IN SECTION 7701(A)(30) OF THE CODE) FOR
U.S. FEDERAL INCOME TAX PURPOSES TO THE EXTENT THAT SUCH LENDER HAS NOT PROVIDED
TO THE BORROWER U.S. INTERNAL REVENUE SERVICE FORMS THAT ESTABLISH A COMPLETE
EXEMPTION FROM SUCH DEDUCTION OR WITHHOLDING AND (Y) THE BORROWER SHALL NOT BE
OBLIGATED PURSUANT TO SECTION 2.17(A) HEREOF TO GROSS-UP PAYMENTS TO BE MADE TO
A LENDER IN RESPECT OF TAXES IMPOSED BY THE UNITED STATES IF (I) SUCH LENDER HAS
NOT PROVIDED TO THE BORROWER THE INTERNAL REVENUE SERVICE FORMS REQUIRED TO BE
PROVIDED TO THE BORROWER PURSUANT TO THIS SECTION 2.17(B) OR (II) IN THE CASE OF
A PAYMENT, OTHER THAN INTEREST, TO A LENDER DESCRIBED IN CLAUSE (II) ABOVE, TO
THE EXTENT THAT SUCH FORMS DO NOT ESTABLISH A COMPLETE EXEMPTION FROM
WITHHOLDING OF SUCH TAXES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
IN THE
40
PRECEDING SENTENCE OR ELSEWHERE IN THIS SECTION 2.17, THE BORROWER AGREES TO PAY
ADDITIONAL AMOUNTS AND TO INDEMNIFY EACH LENDER IN THE MANNER SET FORTH IN
SECTION 2.17(A) (WITHOUT REGARD TO THE IDENTITY OF THE JURISDICTION REQUIRING
THE DEDUCTION OR WITHHOLDING) IN RESPECT OF ANY AMOUNTS DEDUCTED OR WITHHELD BY
IT AS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE 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 TAXES.
(C)
EACH LENDER AGREES TO USE REASONABLE EFFORTS (INCLUDING REASONABLE
EFFORTS TO CHANGE ITS DOMESTIC LENDING OFFICE OR LIBOR LENDING OFFICE, AS THE
CASE MAY BE) TO AVOID OR TO MINIMIZE ANY AMOUNTS WHICH MIGHT OTHERWISE BE
PAYABLE PURSUANT TO THIS SECTION; PROVIDED, HOWEVER, THAT SUCH EFFORTS SHALL NOT
CAUSE THE IMPOSITION ON SUCH LENDER OF ANY ADDITIONAL COSTS OR LEGAL OR
REGULATORY BURDENS DEEMED BY SUCH LENDER IN ITS SOLE DISCRETION TO BE MATERIAL.
(D)
IF THE BORROWER PAYS ANY ADDITIONAL AMOUNT PURSUANT TO THIS
SECTION 2.17 WITH RESPECT TO A LENDER, SUCH LENDER SHALL USE REASONABLE EFFORTS
TO OBTAIN A REFUND OF TAX OR CREDIT AGAINST ITS TAX LIABILITIES ON ACCOUNT OF
SUCH PAYMENT; PROVIDED THAT SUCH LENDER SHALL HAVE NO OBLIGATION TO USE SUCH
REASONABLE EFFORTS IF EITHER (I) IT IS IN AN EXCESS FOREIGN TAX CREDIT POSITION
OR (II) IT BELIEVES IN GOOD FAITH, IN ITS SOLE DISCRETION, THAT CLAIMING A
REFUND OR CREDIT WOULD CAUSE ADVERSE TAX CONSEQUENCES TO IT.
IN THE EVENT THAT
SUCH LENDER RECEIVES SUCH A REFUND OR CREDIT, SUCH LENDER SHALL PAY TO THE
BORROWER AN AMOUNT THAT SUCH LENDER REASONABLY DETERMINES IS EQUAL TO THE NET
TAX BENEFIT OBTAINED BY SUCH LENDER AS