amount
equal to the sum it would have received had no such withholding or deductions
been made (the "Gross-Up Payment"), (b) such Borrower shall make such
withholding or deductions, and (c) such Borrower shall pay the full amount
withheld or deducted to the relevant taxation authority or other authority in
accordance with Applicable Law.
Notwithstanding the foregoing and only with
respect to any withholdings or deductions for taxes payable pursuant to the laws
of the United States of America or any state or jurisdiction thereof, no
Borrower shall be obligated to make any portion of the Gross-Up Payment that is
attributable to any withholding or deductions that would not have been paid or
claimed had the applicable Payee or Payees properly claimed a complete exemption
with respect thereto pursuant to Section 3.11 hereof.
3.11. Withholding Tax Exemption.
(A)
EACH PAYEE THAT IS NOT INCORPORATED UNDER THE LAWS OF THE UNITED STATES
OF AMERICA OR A STATE THEREOF (AND, UPON THE WRITTEN REQUEST OF AGENT, EACH
OTHER PAYEE) AGREES THAT IT WILL DELIVER TO BORROWING AGENT AND AGENT TWO (2)
DULY COMPLETED APPROPRIATE VALID WITHHOLDING CERTIFICATES (AS DEFINED UNDER
§1.1441-1(C)(16) OF THE INCOME TAX REGULATIONS ("REGULATIONS")) CERTIFYING ITS
STATUS (I.E., U.S. OR FOREIGN PERSON) AND, IF APPROPRIATE, MAKING A CLAIM OF
REDUCED, OR EXEMPTION FROM, U.S. WITHHOLDING TAX ON THE BASIS OF AN INCOME TAX
TREATY OR AN EXEMPTION PROVIDED BY THE CODE.
THE TERM "WITHHOLDING CERTIFICATE"
MEANS A FORM W-9; A FORM W-8BEN; A FORM W-8ECI; A FORM W-8IMY AND THE RELATED
STATEMENTS AND CERTIFICATIONS AS REQUIRED UNDER §1.1441-1(E)(2) AND/OR (3) OF
THE REGULATIONS; A STATEMENT DESCRIBED IN §1.871-14(C)(2)(V) OF THE REGULATIONS;
OR ANY OTHER CERTIFICATES UNDER THE CODE OR
49
REGULATIONS THAT CERTIFY OR ESTABLISH THE STATUS OF A PAYEE OR BENEFICIAL OWNER
AS A U.S. OR FOREIGN PERSON.
(B)
EACH PAYEE REQUIRED TO DELIVER TO BORROWING AGENT AND AGENT A VALID
WITHHOLDING CERTIFICATE PURSUANT TO SECTION 3.11(A) HEREOF SHALL DELIVER SUCH
VALID WITHHOLDING CERTIFICATE AS FOLLOWS:
(A) EACH PAYEE WHICH IS A PARTY
HERETO ON THE SECOND RESTATED CLOSING DATE SHALL DELIVER SUCH VALID WITHHOLDING
CERTIFICATE AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE FIRST DATE ON WHICH ANY
INTEREST OR FEES ARE PAYABLE BY ANY BORROWER HEREUNDER FOR THE ACCOUNT OF SUCH
PAYEE; (B) EACH PAYEE SHALL DELIVER SUCH VALID WITHHOLDING CERTIFICATE AT LEAST
FIVE (5) BUSINESS DAYS BEFORE THE EFFECTIVE DATE OF SUCH ASSIGNMENT OR
PARTICIPATION (UNLESS AGENT IN ITS SOLE DISCRETION SHALL PERMIT SUCH PAYEE TO
DELIVER SUCH WITHHOLDING CERTIFICATE LESS THAN FIVE (5) BUSINESS DAYS BEFORE
SUCH DATE IN WHICH CASE IT SHALL BE DUE ON THE DATE SPECIFIED BY AGENT).
EACH
PAYEE WHICH SO DELIVERS A VALID WITHHOLDING CERTIFICATE FURTHER UNDERTAKES TO
DELIVER TO BORROWING AGENT AND AGENT TWO (2) ADDITIONAL COPIES OF SUCH
WITHHOLDING CERTIFICATE (OR A SUCCESSOR FORM) ON OR BEFORE THE DATE THAT SUCH
WITHHOLDING CERTIFICATE EXPIRES OR BECOMES OBSOLETE OR AFTER THE OCCURRENCE OF
ANY EVENT REQUIRING A CHANGE IN THE MOST RECENT WITHHOLDING CERTIFICATE SO
DELIVERED