LENDER IS NOT
SUBJECT TO U.S. FEDERAL BACKUP WITHHOLDING TAX.
FOR THE AVOIDANCE OF DOUBT,
SUCH TAX IS AN "EXCLUDED TAX".
(H)
IF A PAYMENT MADE TO A LENDER, INCLUDING ANY ISSUING BANK, UNDER
ANY LOAN DOCUMENT WOULD BE SUBJECT TO U.S. FEDERAL WITHHOLDING TAX IMPOSED BY
FATCA IF SUCH LENDER WERE TO FAIL TO COMPLY WITH THE APPLICABLE REQUIREMENTS OF
FATCA (INCLUDING THOSE CONTAINED IN SECTION 1471(B) OR 1472(B) OF THE CODE, AS
APPLICABLE), SUCH LENDER SHALL DELIVER TO THE COMPANY AND THE ADMINISTRATIVE
AGENT AT THE TIME OR TIMES PRESCRIBED BY LAW AND AT SUCH TIME OR TIMES
REASONABLY REQUESTED BY THE COMPANY OR THE ADMINISTRATIVE AGENT SUCH
DOCUMENTATION PRESCRIBED BY APPLICABLE LAW (INCLUDING AS PRESCRIBED BY SECTION
1471(B)(3)(C)(I) OF THE CODE) AND SUCH ADDITIONAL DOCUMENTATION REASONABLY
REQUESTED BY THE COMPANY OR THE ADMINISTRATIVE AGENT AS MAY BE NECESSARY FOR THE
COMPANY OR THE ADMINISTRATIVE AGENT TO COMPLY WITH ITS OBLIGATIONS UNDER FATCA,
TO DETERMINE THAT SUCH LENDER HAS OR HAS NOT COMPLIED WITH SUCH LENDER'S
OBLIGATIONS UNDER FATCA OR TO DETERMINE THE AMOUNT TO DEDUCT AND WITHHOLD FROM
SUCH PAYMENT.
SOLELY FOR THE PURPOSES OF THIS SECTION 2.18(H), "FATCA" SHALL
INCLUDE ANY AMENDMENTS MADE TO FATCA AFTER THE DATE OF THIS AGREEMENT, WHETHER
OR NOT INCLUDED IN THE DEFINITION OF FATCA.
45
(I)
EACH LENDER, INCLUDING ANY ISSUING BANK, AGREES THAT IF ANY FORM OR
CERTIFICATION IT PREVIOUSLY DELIVERED EXPIRES OR BECOMES OBSOLETE OR INACCURATE
IN ANY RESPECT, IT SHALL UPDATE SUCH FORM OR CERTIFICATION OR PROMPTLY NOTIFY
THE COMPANY AND THE ADMINISTRATIVE AGENT IN WRITING OF ITS LEGAL INABILITY TO DO
SO.
(J)
IF THE ADMINISTRATIVE AGENT OR A LENDER DETERMINES, IN ITS SOLE
DISCRETION, THAT IT HAS RECEIVED A REFUND OF ANY INDEMNIFIED TAXES OR OTHER
TAXES AS TO WHICH IT HAS BEEN INDEMNIFIED BY ANY BORROWER OR WITH RESPECT TO
WHICH ANY BORROWER HAS PAID ADDITIONAL AMOUNTS PURSUANT TO THIS SECTION 2.16, IT
SHALL PAY OVER SUCH REFUND TO SUCH BORROWER (BUT ONLY TO THE EXTENT OF INDEMNITY
PAYMENTS MADE, OR ADDITIONAL AMOUNTS PAID, BY SUCH BORROWER UNDER THIS SECTION
2.16 WITH RESPECT TO THE INDEMNIFIED TAXES OR OTHER TAXES GIVING RISE TO SUCH
REFUND), NET OF ALL OUT-OF-POCKET EXPENSES WITH RESPECT TO SUCH REFUND OF THE
ADMINISTRATIVE AGENT OR SUCH LENDER AND WITHOUT INTEREST (OTHER THAN ANY
INTEREST PAID BY THE RELEVANT GOVERNMENTAL AUTHORITY WITH RESPECT TO SUCH
REFUND); PROVIDED THAT SUCH BORROWER, UPON THE REQUEST OF THE ADMINISTRATIVE
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 THE ADMINISTRATIVE AGENT OR SUCH LENDER IN THE EVENT THE
ADMINISTRATIVE AGENT OR SUCH LENDER IS REQUIRED TO REPAY SUCH REFUND TO SUCH
GOVERNMENTAL AUTHORITY. THIS SECTION SHALL NOT BE CONSTRUED TO REQUIRE THE
ADMINISTRATIVE 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.
(K)