OF AN INCOME TAX TREATY TO WHICH THE UNITED STATES OF
AMERICA IS A PARTY,
(II)
TWO (2) PROPERLY COMPLETED AND EXECUTED IRS FORMS W-8ECI,
(III)
IN THE CASE OF A FOREIGN LENDER CLAIMING THE BENEFITS OF THE
EXEMPTION FOR PORTFOLIO INTEREST UNDER SECTION 881(C) OF THE CODE, (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" DESCRIBED IN SECTION 881(C)(3)(C) OF THE CODE
AND (Y) TWO (2) PROPERLY COMPLETED AND EXECUTED IRS FORMS W-8BEN,
(IV)
TWO (2) PROPERLY COMPLETED AND EXECUTED FORMS W-8IMY (TOGETHER
WITH FORMS LISTED UNDER CLAUSES (I) THROUGH (III) OR (V) HEREOF, AS MAY BE
REQUIRED), OR
(V)
ANY OTHER FORM PRESCRIBED BY APPLICABLE LAW AS A BASIS FOR
CLAIMING EXEMPTION FROM OR A REDUCTION IN U.S. FEDERAL WITHHOLDING TAX PROPERLY
COMPLETED AND EXECUTED TOGETHER WITH ANY SUPPLEMENTARY DOCUMENTATION AS MAY BE
PRESCRIBED BY APPLICABLE LAW TO PERMIT THE BORROWER AND THE ADMINISTRATIVE AGENT
TO DETERMINE THE WITHHOLDING OR DEDUCTION REQUIRED TO BE MADE.
(F)
TAX REFUNDS.
IF THE ADMINISTRATIVE AGENT
OR A LENDER OR ISSUING BANK DETERMINES, IN ITS SOLE DISCRETION, THAT IT HAS
RECEIVED A REFUND OF ANY INDEMNIFIED TAXES OR OTHER TAXES AS TO WHICH IT HAS
BEEN INDEMNIFIED BY THE BORROWER OR ANY GUARANTOR OR WITH RESPECT TO WHICH THE
BORROWER OR ANY GUARANTOR HAS PAID ADDITIONAL AMOUNTS PURSUANT TO THIS
SECTION 5.03, IT SHALL PAY OVER SUCH REFUND TO THE BORROWER (BUT ONLY TO THE
EXTENT OF INDEMNITY PAYMENTS MADE, OR ADDITIONAL AMOUNTS PAID, BY THE BORROWER
OR SUCH GUARANTOR UNDER THIS SECTION 5.03 WITH RESPECT TO THE INDEMNIFIED TAXES
OR OTHER TAXES GIVING RISE TO SUCH REFUND), NET OF ALL OUT-OF-POCKET EXPENSES OF
THE ADMINISTRATIVE AGENT OR SUCH LENDER OR ISSUING BANK 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 OR ISSUING BANK, AGREES TO REPAY THE AMOUNT
PAID OVER TO THE BORROWER OR ANY GUARANTOR (PLUS ANY PENALTIES, INTEREST OR
OTHER CHARGES IMPOSED BY THE RELEVANT GOVERNMENTAL AUTHORITY) TO THE
ADMINISTRATIVE AGENT OR SUCH LENDER OR ISSUING BANK IN THE EVENT THE
ADMINISTRATIVE AGENT
52
OR SUCH LENDER OR ISSUING BANK IS REQUIRED TO REPAY SUCH REFUND TO SUCH
GOVERNMENTAL AUTHORITY.
THIS SECTION 5.03 SHALL NOT BE CONSTRUED TO REQUIRE THE
ADMINISTRATIVE AGENT OR ANY LENDER OR ISSUING BANK TO MAKE AVAILABLE ITS TAX
RETURNS (OR ANY OTHER INFORMATION RELATING TO ITS TAXES WHICH IT DEEMS
CONFIDENTIAL) TO THE BORROWER OR ANY OTHER PERSON.
SECTION 5.04
MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(A)
DESIGNATION OF DIFFERENT LENDING OFFICE.
IF ANY LENDER REQUESTS
COMPENSATION UNDER SECTION 5.01, OR IF ANY CREDIT PARTY IS REQUIRED TO PAY ANY
ADDITIONAL AMOUNT TO ANY LENDER OR ANY GOVERNMENTAL AUTHORITY FOR THE