REASONABLY EXPECTED TO BE
EFFECTIVELY CONNECTED WITH THE CONDUCT OF THAT TRADE OR BUSINESS AND ARE OR WILL
BE INCLUDIBLE IN ITS GROSS INCOME OR, IF SUCH LENDER IS NOT ENGAGED IN A UNITED
STATES TRADE OR BUSINESS WITH WHICH SUCH PAYMENTS ARE EFFECTIVELY CONNECTED,
SUCH LENDER IS ENTITLED TO THE BENEFITS OF A TAX CONVENTION WHICH EXEMPTS THE
INCOME FROM UNITED STATES WITHHOLDING TAX AND THAT IT HAS SATISFIED ALL
REQUIREMENTS TO QUALIFY FOR THE EXEMPTION FROM TAX.
(III)
SUCH LENDER AGREES THAT IT WILL, IMMEDIATELY UPON THE REQUEST OF
THE AGENT, FURNISH TO THE AGENT A COPY TO THE BORROWER FORM W-9, W-8BEN OR
W-8ECI (AS APPLICABLE TO IT) OF THE INTERNAL REVENUE SERVICE, OR SUCH OTHER
FORMS, CERTIFICATIONS, STATEMENTS OR DOCUMENTS, DULY EXECUTED AND COMPLETED BY
SUCH LENDER AS EVIDENCE OF SUCH LENDER'S EXEMPTION FROM THE WITHHOLDING OF
UNITED STATES TAX WITH RESPECT THERETO.
IF SUCH LENDER DETERMINES THAT, AS A
RESULT OF ANY CHANGE IN ANY REQUIREMENT OF LAW OR IN ANY OFFICIAL APPLICATION OR
INTERPRETATION THEREOF, IT CEASES TO QUALIFY FOR EXEMPTION FROM ANY TAX IMPOSED
BY ANY JURISDICTION WITH RESPECT TO PAYMENTS MADE HEREUNDER, SUCH LENDER SHALL
PROMPTLY NOTIFY THE AGENT AND THE BORROWER OF SUCH FACT AND THE AGENT MAY, BUT
SHALL NOT BE REQUIRED TO WITHHOLD THE AMOUNT OF ANY SUCH APPLICABLE TAX FROM
AMOUNTS PAID TO SUCH LENDER HEREUNDER.
THE AGENT SHALL NOT BE OBLIGATED TO MAKE
ANY PAYMENTS HEREUNDER TO SUCH LENDER IN RESPECT TO THE OBLIGATIONS OWING TO
SUCH LENDER HEREUNDER UNTIL SUCH LENDER SHALL HAVE FURNISHED TO THE AGENT THE
REQUESTED FORM, CERTIFICATION, STATEMENT OR DOCUMENT, AND MAY WITHHOLD THE
AMOUNT OF SUCH APPLICABLE TAX FROM AMOUNTS PAID TO SUCH LENDER HEREUNDER.
(IV)
EACH LENDER SHALL REIMBURSE, INDEMNIFY AND HOLD THE AGENT AND THE
BORROWER HARMLESS FROM ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY
KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED UPON, INCURRED BY OR ASSERTED
AGAINST THE AGENT OR THE BORROWER, AS THE CASE MAY BE, DUE TO ITS RELIANCE UPON
THE REPRESENTATION HEREBY MADE THAT SUCH LENDER IS EXEMPT FROM WITHHOLDING OF
TAX.
UNLESS THE AGENT RECEIVES WRITTEN NOTICE TO THE CONTRARY, SUCH LENDER
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS CONTAINED IN THIS SECTION
9.6(H) FOR THE CURRENT AND EACH SUBSEQUENT TAX YEAR OF SUCH LENDER.
67
9.7
ADJUSTMENTS; SET-OFF.
(A)
IF ANY LENDER (A "BENEFITTED LENDER") SHALL AT ANY TIME RECEIVE
ANY PAYMENT OF ALL OR PART OF ITS LOANS OR ITS PARTICIPATIONS IN LETTERS OF
CREDIT, OR INTEREST THEREON, OR FEES, OR RECEIVE ANY COLLATERAL IN RESPECT
THEREOF (WHETHER VOLUNTARILY OR INVOLUNTARILY, BY SET-OFF, PURSUANT TO EVENTS OR
PROCEEDINGS OF THE NATURE REFERRED TO IN SECTION 7(G) OR 8.8, OR OTHERWISE), IN
A GREATER PROPORTION THAN ANY SUCH PAYMENT TO OR COLLATERAL RECEIVED BY ANY
OTHER LENDER, IF ANY, IN RESPECT OF SUCH OTHER LENDER'S LOANS, ITS PARTICIPATION
IN LETTERS OF CREDIT, OR INTEREST THEREON, OR FEES, SUCH BENEFITTED LENDER