881(C)(3)(B); AND (3) THE
FOREIGN LENDER IS NOT A CONTROLLED FOREIGN CORPORATION THAT IS RELATED TO THE
BORROWER WITHIN THE MEANING OF CODE SECTION 881(C)(3)(C); OR (IV) SUCH OTHER
INTERNAL REVENUE SERVICE FORMS AS MAY BE APPLICABLE TO THE FOREIGN LENDER,
INCLUDING FORMS W-8 IMY OR W-8 EXP.
EACH SUCH FOREIGN LENDER SHALL DELIVER TO
THE BORROWER AND THE ADMINISTRATIVE AGENT SUCH FORMS ON OR BEFORE THE DATE THAT
IT BECOMES A PARTY TO THIS AGREEMENT (OR IN THE CASE OF A PARTICIPANT, ON OR
BEFORE THE DATE SUCH PARTICIPANT PURCHASES THE RELATED PARTICIPATION).
IN
ADDITION, EACH SUCH FOREIGN LENDER SHALL DELIVER SUCH
37
FORMS PROMPTLY UPON THE OBSOLESCENCE OR INVALIDITY OF ANY FORM PREVIOUSLY
DELIVERED BY SUCH FOREIGN LENDER.
EACH SUCH FOREIGN LENDER SHALL PROMPTLY
NOTIFY THE BORROWER AND THE ADMINISTRATIVE AGENT AT ANY TIME THAT IT DETERMINES
THAT IT IS NO LONGER IN A POSITION TO PROVIDE ANY PREVIOUSLY DELIVERED
CERTIFICATE TO THE BORROWER (OR ANY OTHER FORM OF CERTIFICATION ADOPTED BY THE
INTERNAL REVENUE SERVICE FOR SUCH PURPOSE).
(F)
FOR ANY PERIOD WITH RESPECT TO WHICH A FOREIGN LENDER HAS FAILED
TO PROVIDE THE BORROWER WITH THE APPROPRIATE FORM, CERTIFICATE OR OTHER DOCUMENT
DESCRIBED IN SECTION 2.20(E) (OTHER THAN IF SUCH FAILURE IS DUE TO A CHANGE IN
LAW, OCCURRING SUBSEQUENT TO THE DATE ON WHICH A FORM, CERTIFICATE OR OTHER
DOCUMENT ORIGINALLY WAS REQUIRED TO BE PROVIDED, OR IF SUCH FORM, CERTIFICATE OR
OTHER DOCUMENT OTHERWISE IS NOT REQUIRED UNDER SUBSECTION (E) ABOVE), SUCH
FOREIGN LENDER SHALL NOT BE ENTITLED TO THE ADDITIONAL PAYMENT OR
INDEMNIFICATION UNDER SECTION 2.20(A) OR (C) WITH RESPECT TO TAXES IMPOSED BY
THE UNITED STATES BY REASON OF SUCH FAILURE; PROVIDED, HOWEVER, THAT SHOULD A
LENDER BECOME SUBJECT TO TAXES BECAUSE OF ITS FAILURE TO DELIVER A FORM,
CERTIFICATE OR OTHER DOCUMENT REQUIRED HEREUNDER, THE BORROWER SHALL TAKE SUCH
STEPS AS THE FOREIGN LENDER SHALL REASONABLY REQUEST TO ASSIST THE FOREIGN
LENDER TO RECOVER SUCH TAXES.
(G)
IF THE ADMINISTRATIVE AGENT OR ANY 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 THE BORROWER OR WITH RESPECT TO WHICH THE
BORROWER HAS PAID AMOUNTS PURSUANT TO THIS SECTION 2.20, 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 UNDER THIS SECTION 2.20 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 AUTHORITY) TO THE ADMINISTRATIVE AGENT OR SUCH LENDER IN THE EVENT
THE ADMINISTRATIVE AGENT OR SUCH