SUBSECTION (E) REQUIRES THE
DISCLOSURE OF INFORMATION, OTHER THAN INFORMATION NECESSARY TO COMPUTE THE TAX
PAYABLE AND INFORMATION REQUIRED ON THE DATE HEREOF BY INTERNAL REVENUE SERVICE
FORMS W-8BEN OR W-8ECI OR THE RELATED CERTIFICATE DESCRIBED ABOVE, THAT THE
APPLICABLE LENDER PARTY REASONABLY CONSIDERS TO BE CONFIDENTIAL, SUCH LENDER
PARTY SHALL GIVE NOTICE THEREOF TO THE BORROWER AND SHALL NOT BE OBLIGATED TO
INCLUDE IN SUCH FORM OR DOCUMENT SUCH CONFIDENTIAL INFORMATION.
(F)
FOR ANY PERIOD WITH RESPECT TO WHICH A LENDER PARTY HAS FAILED TO
PROVIDE THE BORROWER WITH THE APPROPRIATE FORM, CERTIFICATE OR OTHER DOCUMENT
DESCRIBED IN SUBSECTION (E) ABOVE (OTHER THAN IF SUCH FAILURE IS DUE TO A CHANGE
IN LAW, OR IN THE INTERPRETATION OR APPLICATION THEREOF, OCCURRING AFTER THE
DATE ON WHICH A FORM, CERTIFICATE OR OTHER DOCUMENT ORIGINALLY WAS REQUIRED TO
BE PROVIDED OR IF SUCH FORM, CERTIFICATE OR OTHER DOCUMENT OTHERWISE IS NOT
REQUIRED UNDER SUBSECTION (E) ABOVE), SUCH LENDER PARTY SHALL NOT BE ENTITLED TO
INDEMNIFICATION UNDER SUBSECTION (A) OR (C) OF THIS SECTION 2.12 WITH RESPECT TO
TAXES IMPOSED BY THE UNITED STATES BY REASON OF SUCH FAILURE; PROVIDED, HOWEVER,
THAT SHOULD A LENDER PARTY BECOME SUBJECT TO TAXES
40
BECAUSE OF ITS FAILURE TO DELIVER A FORM, CERTIFICATE OR OTHER DOCUMENT REQUIRED
HEREUNDER, THE BORROWER SHALL TAKE SUCH STEPS AS SUCH LENDER PARTY SHALL
REASONABLY REQUEST TO ASSIST SUCH LENDER PARTY TO RECOVER SUCH TAXES.
(G)
ANY LENDER PARTY CLAIMING ANY ADDITIONAL AMOUNTS PAYABLE PURSUANT
TO THIS SECTION 2.12 AGREES TO USE REASONABLE EFFORTS (CONSISTENT WITH ITS
INTERNAL POLICY AND LEGAL AND REGULATORY RESTRICTIONS) TO CHANGE THE
JURISDICTION OF ITS APPLICABLE LENDING OFFICE IF THE MAKING OF SUCH A CHANGE
WOULD AVOID THE NEED FOR, OR REDUCE THE AMOUNT OF, ANY SUCH ADDITIONAL AMOUNTS
THAT MAY THEREAFTER ACCRUE AND WOULD NOT, IN THE REASONABLE JUDGMENT OF SUCH
LENDER PARTY, BE OTHERWISE DISADVANTAGEOUS TO SUCH LENDER PARTY.
NOTHING IN
THIS SECTION 2.12 OR OTHERWISE IN THIS AGREEMENT SHALL REQUIRE ANY LENDER PARTY
TO DISCLOSE TO THE BORROWER ANY OF ITS TAX RETURNS (OR ANY OTHER INFORMATION
THAT IT DEEMS TO BE CONFIDENTIAL OR PROPRIETARY).
(H)
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER AGREEMENT CONTAINED
HEREIN, THE AGREEMENTS AND OBLIGATIONS CONTAINED IN THIS SECTION 2.12 SHALL
SURVIVE THE PAYMENT IN FULL OF THE PRINCIPAL OF AND INTEREST ON ALL NOTES AND
ADVANCES MADE HEREUNDER.
Section 2.13.
Sharing of Payments, Etc.
If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 8.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and