OF COPIES AS SHALL BE REQUESTED BY THE RECIPIENT) ON
OR PRIOR TO THE DATE ON WHICH SUCH FOREIGN LENDER BECOMES A LENDER UNDER THIS
AGREEMENT (AND FROM TIME TO TIME THEREAFTER UPON REQUEST OF BORROWER OR THE
AGENT, BUT ONLY IF SUCH FOREIGN LENDER IS LEGALLY ENTITLED TO DO SO), WHICHEVER
OF THE FOLLOWING IS APPLICABLE:
(I) TWO ACCURATE AND COMPLETE ORIGINALLY
EXECUTED U.S. IRS FORM W-8BEN (OR SUCCESSOR FORM) OR (II) AN ACCURATE AND
COMPLETE U.S. IRS FORMS W-8ECI (OR SUCCESSOR FORM), CERTIFYING, IN EITHER CASE,
TO SUCH FOREIGN LENDER'S LEGAL ENTITLEMENT TO AN EXEMPTION FROM OR REDUCTION IN
U.S. FEDERAL WITHHOLDING TAX WITH RESPECT TO ALL INTEREST PAYMENTS HEREUNDER;
PROVIDED THAT ANY FOREIGN LENDER THAT IS NOT A "BANK" WITHIN THE MEANING OF
SECTION 881(C)(3)(A) OF THE IRC AND IS RELYING ON THE SO-CALLED "PORTFOLIO
14
INTEREST EXEMPTION" SHALL ALSO FURNISH A "NON-BANK CERTIFICATE" IN THE FORM OF
EXHIBIT 1.16(D) TOGETHER WITH TWO ACCURATE AND COMPLETE ORIGINALLY EXECUTED U.S.
IRS FORMS W-8BEN (OR SUCCESSOR FORM) AND SUCH OTHER DOCUMENTATION REASONABLY
REQUESTED BY BORROWER TO ESTABLISH THAT SUCH LENDER IS NOT SUBJECT TO DEDUCTION
OR WITHHOLDING OF UNITED STATES FEDERAL INCOME TAX WITH RESPECT TO ANY PAYMENTS
TO SUCH LENDER OF INTEREST PAYABLE UNDER THIS AGREEMENT OR ANY OTHER DOCUMENT
RELATED THERETO.
(E)
ANY LENDER THAT IS A UNITED STATES PERSON,
AS DEFINED IN SECTION 7701(A)(30) OF THE IRC, AND IS NOT AN EXEMPT RECIPIENT
WITHIN THE MEANING OF TREASURY REGULATIONS SECTION 1.6049-4(C) SHALL DELIVER TO
BORROWER (WITH A COPY TO THE AGENT), AT THE TIME OR TIMES PRESCRIBED BY
APPLICABLE LAW OR REASONABLY REQUESTED BY BORROWER, TWO ACCURATE AND COMPLETE
ORIGINAL SIGNED COPIES OF IRS FORM W-9, OR ANY SUCCESSOR FORM THAT SUCH PERSON
IS ENTITLED TO PROVIDE AT SUCH TIME IN ORDER TO COMPLY WITH UNITED STATES BACKUP
WITHHOLDING REQUIREMENTS.
(F)
IF THE AGENT OR A 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 BORROWER OR WITH RESPECT TO WHICH
BORROWER HAS PAID ADDITIONAL AMOUNTS PURSUANT TO THIS SECTION 1.16, IT SHALL PAY
TO BORROWER AN AMOUNT EQUAL TO SUCH REFUND (BUT ONLY TO THE EXTENT OF INDEMNITY
PAYMENTS MADE, OR ADDITIONAL AMOUNTS PAID, BY BORROWER UNDER THIS SECTION 1.16
WITH RESPECT TO THE TAXES OR OTHER TAXES GIVING RISE TO SUCH REFUND), NET OF ALL
OUT-OF-POCKET EXPENSES OF THE AGENT OR SUCH LENDER, AS THE CASE MAY BE, AND
WITHOUT INTEREST (OTHER THAN ANY INTEREST PAID BY THE RELEVANT GOVERNMENTAL
AUTHORITY WITH RESPECT TO SUCH REFUND); PROVIDED THAT BORROWER, UPON THE REQUEST
OF THE AGENT OR SUCH LENDER, AGREES TO REPAY THE AMOUNT PAID OVER TO BORROWER
(PLUS ANY PENALTIES, INTEREST OR OTHER CHARGES IMPOSED BY THE RELEVANT
GOVERNMENTAL AUTHORITY) TO THE AGENT OR SUCH LENDER IN THE EVENT THE AGENT OR
SUCH LENDER IS REQUIRED TO REPAY SUCH REFUND TO SUCH GOVERNMENTAL AUTHORITY.
THIS SECTION 1.16(F) SHALL NOT BE CONSTRUED TO REQUIRE THE AGENT OR