Kodak 2011 Annual Report Download - page 201

becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (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 Lender assignee on such date. If a
payment made to a Lender hereunder or under the Notes would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to
comply with the applicable reporting 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 Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company
or the 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 Agent as may be necessary for the Company and the Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this Section 2.14(e) , “FATCA” shall include any amendments made to FATCA after the date of this
Agreement. If any form or document referred to in this subsection (e) (other than FATCA documentation) requires the disclosure of information, other
than information necessary to compute the tax payable and information required on the Effective Date by Internal Revenue Service Form W-8BEN or W-
8ECI or the related certificate described above, that the Lender reasonably considers to be confidential, the Lender shall give notice thereof to the Company
and shall not be obligated to include in such form or document such confidential information, except directly to a governmental authority or other Person
subject to a reasonable confidentiality agreement. In addition, upon the written request of the Company or the Agent, each Lender or the Agent shall
provide any other certification, identification, information, documentation or other reporting requirement if (i) delivery thereof is required by a change in
the law, regulation, administrative practice or any applicable tax treaty as a precondition to exemption from or a reduction in the rate of deduction or
withholding; (ii) the Agent or Lender, as the case may be, is legally entitled to make delivery of such item; and (iii) delivery of such item will not result in
material additional costs unless Borrower shall have agreed in writing to indemnify Lender or the Agent for such costs.
(f) For any period with respect to which a Lender has failed to provide the Company with the appropriate form, certificate or other
document described in Section 2.14(e) ( other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring
subsequent to 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), taxes imposed by the United States of America or Canada by reason of such failure shall be treated
as Excluded Taxes; provided , however , that should a Lender become subject to taxes because of its failure to deliver a form, certificate or other document
required hereunder, the Loan Parties, at such Lender’s expense, shall take such steps as the Lender shall reasonably request to assist the Lender to recover
such taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this Section 2.14
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 judgment of such Lender, be
otherwise disadvantageous to such Lender.
(h) If any Lender or the Agent determines, in its sole discretion, that it has actually and finally realized, by reason of a refund,
deduction or credit of any Taxes paid or reimbursed by a Loan Party pursuant to subsection (a) or (c) above in respect of payments under this Agreement or
the other Loan Documents, a current monetary benefit that it would otherwise not have obtained, and that would result in the total payments under this
Section 2.14 exceeding the amount needed to make such Lender or the Agent whole, such Lender or the Agent, as the case may be, shall pay to the
applicable Loan Party, with reasonable promptness following the date on which it actually realizes such benefit, an amount equal to the lesser of the amount
of such benefit or the amount of such excess, in each case net of all out-of-pocket expenses in securing such refund, deduction or credit; provided , that the
Borrowers, upon the request of the Agent or such Lender, agree to repay the amount paid (with interest and penalties) over to
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