WHICH ANY SUCH
DELIVERY WOULD OTHERWISE BE REQUIRED WHICH RENDERS ALL SUCH FORMS INAPPLICABLE
OR WHICH WOULD PREVENT SUCH LENDER FROM DULY COMPLETING AND DELIVERING ANY SUCH
FORM OR AMENDMENT WITH RESPECT TO IT AND SUCH LENDER ADVISES THE BORROWER AND
THE ADMINISTRATIVE AGENT THAT IT IS NOT CAPABLE OF RECEIVING PAYMENTS WITHOUT
ANY DEDUCTION OR WITHHOLDING OF UNITED STATES FEDERAL INCOME TAX.
(V)
FOR ANY PERIOD DURING WHICH A NON-U.S.
LENDER HAS FAILED TO PROVIDE THE BORROWER WITH AN APPROPRIATE FORM PURSUANT TO
CLAUSE (IV), ABOVE (UNLESS SUCH FAILURE IS DUE TO A CHANGE IN TREATY, LAW OR
REGULATION, OR ANY CHANGE IN THE INTERPRETATION OR ADMINISTRATION THEREOF BY ANY
GOVERNMENTAL AUTHORITY, OCCURRING SUBSEQUENT TO THE DATE ON WHICH A FORM
ORIGINALLY WAS REQUIRED TO BE PROVIDED), SUCH NON-U.S. LENDER SHALL NOT BE
ENTITLED TO INDEMNIFICATION UNDER THIS SECTION 3.5 WITH RESPECT TO TAXES IMPOSED
BY THE UNITED STATES.
(VI)
ANY LENDER THAT IS ENTITLED TO AN EXEMPTION
FROM OR REDUCTION OF WITHHOLDING TAX WITH RESPECT TO PAYMENTS UNDER THIS
AGREEMENT OR ANY NOTE PURSUANT TO THE LAW OF ANY RELEVANT JURISDICTION OR ANY
TREATY SHALL DELIVER TO THE BORROWER (WITH A COPY TO THE ADMINISTRATIVE AGENT),
AT THE TIME OR TIMES PRESCRIBED BY APPLICABLE LAW, SUCH PROPERLY COMPLETED AND
EXECUTED
33
DOCUMENTATION PRESCRIBED BY APPLICABLE LAW AS WILL PERMIT SUCH PAYMENTS TO BE
MADE WITHOUT WITHHOLDING OR AT A REDUCED RATE FOLLOWING RECEIPT OF SUCH
DOCUMENTATION.
(VII)
IF THE U.S. INTERNAL REVENUE SERVICE OR ANY
OTHER GOVERNMENTAL AUTHORITY OF THE UNITED STATES OR ANY OTHER COUNTRY OR ANY
POLITICAL SUBDIVISION THEREOF ASSERTS A CLAIM THAT THE ADMINISTRATIVE AGENT DID
NOT PROPERLY WITHHOLD TAX FROM AMOUNTS PAID TO OR FOR THE ACCOUNT OF ANY LENDER
(BECAUSE THE APPROPRIATE FORM WAS NOT DELIVERED OR PROPERLY COMPLETED, BECAUSE
SUCH LENDER FAILED TO NOTIFY THE ADMINISTRATIVE AGENT OF A CHANGE IN
CIRCUMSTANCES WHICH RENDERED ITS EXEMPTION FROM WITHHOLDING INEFFECTIVE, OR FOR
ANY OTHER REASON), SUCH LENDER SHALL INDEMNIFY THE ADMINISTRATIVE AGENT FULLY
FOR ALL AMOUNTS PAID, DIRECTLY OR INDIRECTLY, BY THE ADMINISTRATIVE AGENT AS
TAX, WITHHOLDING THEREFOR, OR OTHERWISE, INCLUDING PENALTIES AND INTEREST, AND
INCLUDING TAXES IMPOSED BY ANY JURISDICTION ON AMOUNTS PAYABLE TO THE
ADMINISTRATIVE AGENT UNDER THIS SUBSECTION, TOGETHER WITH ALL COSTS AND EXPENSES
RELATED THERETO (INCLUDING ATTORNEYS FEES AND TIME CHARGES OF ATTORNEYS FOR THE
ADMINISTRATIVE AGENT, WHICH ATTORNEYS MAY BE EMPLOYEES OF THE ADMINISTRATIVE
AGENT).
THE OBLIGATIONS OF THE LENDERS UNDER THIS SECTION 3.5(VII) SHALL
SURVIVE THE PAYMENT OF THE OBLIGATIONS AND TERMINATION OF THIS AGREEMENT AND ANY
SUCH LENDER OBLIGATED TO INDEMNIFY THE ADMINISTRATIVE AGENT SHALL NOT BE
ENTITLED TO INDEMNIFICATION FROM THE BORROWER WITH RESPECT TO SUCH AMOUNTS,
WHETHER PURSUANT TO THIS ARTICLE OR OTHERWISE, EXCEPT TO THE EXTENT THE BORROWER
PARTICIPATED IN THE ACTIONS GIVING RISE TO SUCH LIABILITY.
3.6
LENDER STATEMENTS; SURVIVAL OF INDEMNITY.
TO THE EXTENT REASONABLY
POSSIBLE, EACH LENDER SHALL DESIGNATE AN ALTERNATE LENDING INSTALLATION WITH
RESPECT TO ITS FIXED RATE LOANS TO REDUCE ANY LIABILITY OF THE BORROWER TO SUCH