SHALL DELIVER
TO THE AGENT AND THE BORROWER, AT THE TIME OF CLOSING (OR IF LATER, ON OR PRIOR
TO THE DATE SUCH LENDER BECOMES A PARTY HERETO) AND FROM TIME TO TIME THEREAFTER
UPON THE REQUEST OF THE BORROWER OR THE AGENT AND ON OR PRIOR TO THE EXPIRATION
OF THE PREVIOUSLY DELIVERED FORM, TWO ORIGINAL COPIES OF EITHER IRS FORM W-9,
W-8BEN, W-ECI, OR W-8IMY (WITH REQUIRED ATTACHMENTS), AS MAY BE APPLICABLE, IN
EACH CASE, PROPERLY COMPLETED AND EXECUTED, AS WILL PERMIT SUCH PAYMENTS TO BE
MADE WITHOUT ANY UNITED STATES BACKUP WITHHOLDING.
A LENDER SHALL NOT BE
REQUIRED TO DELIVER ANY FORM OR STATEMENT PURSUANT TO THIS SECTION 2.11E(V) THAT
SUCH FOREIGN LENDER IS NOT LEGALLY ABLE TO DELIVER.
(VI)
TREATMENT OF CERTAIN REFUNDS.
IF THE AGENT OR A LENDER
DETERMINES, IN ITS REASONABLE DISCRETION, THAT IT HAS RECEIVED A REFUND OF ANY
TAXES OR OTHER TAXES AS TO WHICH IT HAS BEEN INDEMNIFIED BY THE BORROWER OR WITH
RESPECT TO WHICH THE BORROWER HAS PAID ADDITIONAL AMOUNTS PURSUANT TO SUCH
SECTION 2.10, IT 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
THE BORROWER UNDER SUCH SECTION 2.10 WITH RESPECT TO THE TAXES OR OTHER TAXES
GIVING RISE TO SUCH REFUND), NET OF ALL OUT-OF-POCKET EXPENSES OF THE AGENT OR
SUCH LENDER AND WITHOUT INTEREST (OTHER THAN ANY INTEREST PAID BY THE RELEVANT
GOVERNMENTAL AUTHORITY WITH RESPECT TO SUCH REFUND), PROVIDED THAT THE BORROWER,
UPON THE REQUEST OF AGENT OR SUCH LENDER, AGREES TO REPAY THE AMOUNT PAID OVER
TO THE BORROWER (PLUS ANY PENALTIES, INTEREST OR OTHER CHARGES IMPOSED BY THE
RELEVANT GOVERNMENTAL AUTHORITY) TO AGENT OR SUCH LENDER IN THE EVENT SUCH AGENT
OR SUCH LENDER IS REQUIRED TO REPAY SUCH REFUND TO SUCH GOVERNMENTAL AUTHORITY.
THIS PARAGRAPH SHALL NOT BE CONSTRUED TO REQUIRE AGENT OR ANY LENDER TO MAKE
AVAILABLE ITS TAX RETURNS (OR ANY OTHER INFORMATION RELATING TO ITS TAXES WHICH
IT DEEMS CONFIDENTIAL) TO THE BORROWER OR ANY OTHER PERSON.
39
2.11
Mitigation Obligations; Replacement of Lenders.
A.
DESIGNATION OF A DIFFERENT LENDER OFFICE.
IF ANY LENDER REQUESTS
COMPENSATION UNDER SECTION 2.10A OR 2.10B, OR REQUIRES THE BORROWER TO PAY ANY
ADDITIONAL AMOUNT TO ANY LENDER OR ANY GOVERNMENTAL AUTHORITY FOR THE ACCOUNT OF
ANY LENDER PURSUANT TO SECTION 2.10E, THEN SUCH LENDER SHALL USE REASONABLE
EFFORTS TO DESIGNATE A DIFFERENT LENDER OFFICE FOR MAKING, ISSUING, FUNDING OR
MAINTAINING ITS LOAN COMMITMENTS OR LOANS HEREUNDER OR TO ASSIGN ITS RIGHTS AND
OBLIGATIONS HEREUNDER TO ANOTHER OF ITS OFFICES, BRANCHES OR AFFILIATES, IF, IN
THE JUDGMENT OF SUCH LENDER, SUCH DESIGNATION OR ASSIGNMENT (I) WOULD ELIMINATE
OR REDUCE AMOUNTS PAYABLE PURSUANT TO SECTION 2.10 IN THE FUTURE AND (II) WOULD
NOT SUBJECT SUCH LENDER TO ANY UNREIMBURSED COST OR EXPENSE AND WOULD NOT
OTHERWISE BE MATERIALLY DISADVANTAGEOUS TO SUCH LENDER.
THE BORROWER HEREBY
AGREES TO PAY ALL REASONABLE COSTS AND EXPENSES INCURRED BY ANY LENDER