2.11(A) IN RESPECT OF UNITED STATES WITHHOLDING TAX WITH RESPECT TO
INTEREST PAID AT SUCH DATE, THEN, TO SUCH EXTENT, THE TERM TAXES SHALL INCLUDE
(IN ADDITION TO WITHHOLDING TAXES THAT MAY BE IMPOSED IN THE FUTURE OR OTHER
AMOUNTS OTHERWISE INCLUDABLE IN TAXES) UNITED STATES WITHHOLDING TAX, IF ANY,
APPLICABLE WITH RESPECT TO THE PARTICIPANT OR NON-U.S. LENDER ASSIGNEE ON SUCH
DATE.
EACH LENDER THAT IS A UNITED STATES PERSON (OTHER THAN PERSONS WHO ARE
CORPORATIONS OR OTHERWISE EXEMPT FROM UNITED STATES BACKUP WITHHOLDING TAX)
SHALL, AT THE TIME SUCH LENDER BECOMES A PARTY TO THIS AGREEMENT (OR, IN THE
CASE OF A PARTICIPATION, ON OR BEFORE THE DATE ON WHICH THE PARTICIPANT
PURCHASES THE PARTICIPATION) OR AT SUCH TIME (OR TIMES) REASONABLY REQUESTED BY
THE BORROWER, DELIVER TO THE BORROWER A PROPERLY COMPLETED AND DULY EXECUTED
U.S. INTERNAL REVENUE SERVICE FORM W-9 OR ANY SUCCESSOR FORM CERTIFYING THAT
SUCH PERSON IS EXEMPT FROM UNITED STATES BACKUP WITHHOLDING TAX ON PAYMENTS MADE
HEREUNDER.
IF ANY FORM OR DOCUMENT REFERRED TO IN THIS SECTION 2.11(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 FORM W-8BEN, W-8IMY, W-8ECI, W-9 OR ANY SUCCESSOR, OR THE RELATED
CERTIFICATE DESCRIBED ABOVE, THAT THE APPLICABLE LENDER REASONABLY CONSIDERS TO
BE CONFIDENTIAL, SUCH LENDER SHALL GIVE NOTICE THEREOF TO THE BORROWER AND SHALL
NOT BE OBLIGATED TO INCLUDE IN SUCH FORM OR DOCUMENT SUCH CONFIDENTIAL
INFORMATION.
(F)
IF THE ADMINISTRATIVE AGENT OR ANY LENDER
DETERMINES, IN ITS SOLE DISCRETION, THAT IT HAS RECEIVED A REFUND OF ANY TAXES
OR OTHER TAXES AS TO WHICH IT HAS BEEN INDEMNIFIED BY ANY LOAN PARTY OR WITH
RESPECT TO WHICH SUCH LOAN PARTY HAS PAID ADDITIONAL AMOUNTS PURSUANT TO THIS
SECTION 2.11, IT SHALL PAY OVER SUCH REFUND TO THE BORROWER, NET OF ALL
OUT-OF-POCKET EXPENSES 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 THE BORROWER, UPON THE REQUEST OF
THE ADMINISTRATIVE AGENT OR SUCH LENDER, AGREES TO REPAY THE AMOUNT PAID OVER TO
THE BORROWER (PLUS
36
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 PARAGRAPH 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.
Section 2.12
Sharing of Payments, Etc.
If any
Lender shall obtain at any time any payment, whether voluntary, involuntary,
through the exercise of any right of set off, or otherwise (other than pursuant
to Section 2.09, 2.11 or 9.04), (a) on account of Obligations due and payable to
such Lender hereunder and under the other Loan Documents