TO AN EXEMPTION FROM OR
REDUCTION OF WITHHOLDING TAX UNDER THE LAW OF THE JURISDICTION IN WHICH THE
BORROWER IS LOCATED, OR ANY TREATY TO WHICH SUCH JURISDICTION IS A PARTY, WITH
RESPECT TO PAYMENTS UNDER THIS AGREEMENT 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 DOCUMENTATION PRESCRIBED BY APPLICABLE
LAW OR REASONABLY REQUESTED BY THE BORROWER AS WILL PERMIT SUCH PAYMENTS TO BE
MADE WITHOUT WITH-
38
HOLDING OR AT A REDUCED RATE.
WITHOUT LIMITING THE FOREGOING, AT THE REQUEST OF
THE BORROWER EACH FOREIGN LENDER, ON OR PRIOR TO THE DATE ON WHICH SUCH FOREIGN
LENDER BECOMES A LENDER HEREUNDER (AND FROM TIME TO TIME THEREAFTER UPON THE
REQUEST OF THE BORROWER OR THE ADMINISTRATIVE AGENT), SHALL DELIVER TO THE
BORROWER AND THE ADMINISTRATIVE AGENT EITHER (I) TWO DULY COMPLETED COPIES OF
EITHER (X) INTERNAL REVENUE SERVICE FORM W-8BEN CLAIMING ELIGIBILITY OF THE
FOREIGN LENDER FOR BENEFITS OF AN INCOME TAX TREATY TO WHICH THE UNITED STATES
IS A PARTY, OR (Y) INTERNAL REVENUE SERVICE FORM W-8ECI, OR IN EITHER CASE AN
APPLICABLE SUCCESSOR FORM; (II) IN THE CASE OF A FOREIGN LENDER THAT IS NOT
LEGALLY ENTITLED TO DELIVER ANY FORM LISTED IN CLAUSE (E)(I), (X) A CERTIFICATE
TO THE EFFECT THAT SUCH FOREIGN LENDER IS NOT (A) A "BANK" WITHIN THE MEANING OF
SECTION 881(C)(3)(A) OF THE CODE, (B) A "10 PERCENT SHAREHOLDER" OF THE BORROWER
WITHIN THE MEANING OF SECTION 881(C)(3)(B) OF THE CODE, OR (C) A CONTROLLED
FOREIGN CORPORATION RECEIVING INTEREST FROM A RELATED PERSON WITHIN THE MEANING
OF SECTION 881(C)(3)(C) OF THE CODE AND (Y) TWO DULY COMPLETED COPIES OF
INTERNAL REVENUE SERVICE FORM W-8BEN OR APPLICABLE SUCCESSOR FORM OR (III) ANY
OTHER FORM PRESCRIBED BY LAW REASONABLY SATISFACTORY TO THE BORROWER AND THE
ADMINISTRATIVE AGENT ENTITLING EACH LENDER TO A COMPLETE EXEMPTION FROM OR
REDUCTION IN WITHHOLDING TAX.
(F)
IF THE ADMINISTRATIVE AGENT OR A LENDER DETERMINES, IN ITS
REASONABLE DISCRETION, THAT IT HAS RECEIVED A REFUND OF ANY TAXES OR OTHER TAXES
AS TO WHICH IT HAS BEEN INDEMNIFIED BY THE BORROWER OR WITH RESPECT TO WHICH THE
BORROWER HAS PAID ADDITIONAL AMOUNTS PURSUANT TO THIS SUBSECTION 4.12, IT SHALL
PAY OVER SUCH REFUND TO THE BORROWER AS DETERMINED IN GOOD FAITH BY THE
ADMINISTRATIVE AGENT OR SUCH LENDER IN ITS SOLE DISCRETION (BUT ONLY TO THE
EXTENT OF INDEMNITY PAYMENTS MADE, OR ADDITIONAL AMOUNTS PAID, BY THE BORROWER
UNDER THIS SUBSECTION 4.12 WITH RESPECT TO THE TAXES OR OTHER TAXES GIVING RISE
TO SUCH REFUND), NET OF ALL OUT-OF-POCKET EXPENSES OF THE ADMINISTRATIVE AGENT
OR SUCH LENDER AND WITHOUT INTEREST (OTHER THAN ANY INTEREST PAID BY THE
RELEVANT GOVERNMENTAL AUTHORITY WITH RESPECT TO SUCH REFUND); PROVIDED THAT THE
BORROWER, UPON THE REQUEST OF THE ADMINISTRATIVE AGENT OR SUCH LENDER, AGREES TO
REPAY THE AMOUNT PAID OVER TO THE BORROWER (PLUS ANY PENALTIES, INTEREST OR
OTHER CHARGES IMPOSED BY THE RELEVANT GOVERNMENTAL