SUM
PAYABLE UNDER THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS TO AGENT, OR ANY
LENDER, ASSIGNEE OF ANY LENDER, OR PARTICIPANT (EACH, INDIVIDUALLY, A "PAYEE"
AND COLLECTIVELY, THE "PAYEES"), (A) THE SUM PAYABLE TO SUCH PAYEE OR PAYEES, AS
THE CASE MAY BE, SHALL BE INCREASED AS MAY BE NECESSARY SO THAT, AFTER MAKING
ALL REQUIRED WITHHOLDING OR DEDUCTIONS, THE APPLICABLE PAYEE OR PAYEES RECEIVES
AN AMOUNT EQUAL TO THE SUM IT WOULD HAVE RECEIVED HAD NO SUCH WITHHOLDING OR
DEDUCTIONS BEEN MADE (THE "GROSS-UP PAYMENT"), (B) SUCH BORROWER SHALL MAKE SUCH
WITHHOLDING OR DEDUCTIONS, AND (C) SUCH BORROWER SHALL PAY THE FULL AMOUNT
WITHHELD OR DEDUCTED TO THE RELEVANT TAXATION AUTHORITY OR OTHER AUTHORITY IN
ACCORDANCE WITH APPLICABLE LAW.
NOTWITHSTANDING THE FOREGOING, NO BORROWER
SHALL BE OBLIGATED TO MAKE ANY PORTION OF THE GROSS-UP PAYMENT THAT IS
ATTRIBUTABLE TO ANY WITHHOLDING OR DEDUCTIONS THAT WOULD NOT HAVE BEEN PAID OR
CLAIMED HAD THE APPLICABLE PAYEE OR PAYEES PROPERLY CLAIMED A COMPLETE EXEMPTION
WITH RESPECT THERETO PURSUANT TO SECTION 3.11 HEREOF.
43
3.11.
WITHHOLDING TAX EXEMPTION.
(A)
EACH PAYEE THAT IS NOT INCORPORATED UNDER THE LAWS OF THE UNITED
STATES OF AMERICA OR A STATE THEREOF (AND, UPON THE WRITTEN REQUEST OF AGENT,
EACH OTHER PAYEE) AGREES THAT IT WILL DELIVER TO BORROWING AGENT AND AGENT TWO
(2) DULY COMPLETED APPROPRIATE VALID WITHHOLDING CERTIFICATES (AS DEFINED UNDER
§1.1441-1(C)(16) OF THE INCOME TAX REGULATIONS ("REGULATIONS")) CERTIFYING ITS
STATUS (I.E., U.S. OR FOREIGN PERSON) AND, IF APPROPRIATE, MAKING A CLAIM OF
REDUCED, OR EXEMPTION FROM, U.S. WITHHOLDING TAX ON THE BASIS OF AN INCOME TAX
TREATY OR AN EXEMPTION PROVIDED BY THE CODE.
THE TERM "WITHHOLDING CERTIFICATE"
MEANS A FORM W-9; A FORM W-8BEN; A FORM W-8ECI; A FORM W-8IMY AND THE RELATED
STATEMENTS AND CERTIFICATIONS AS REQUIRED UNDER §1.1441-1(E)(2) AND/OR (3) OF
THE REGULATIONS; A STATEMENT DESCRIBED IN §1.871-14(C)(2)(V) OF THE REGULATIONS;
OR ANY OTHER CERTIFICATES UNDER THE CODE OR REGULATIONS THAT CERTIFY OR
ESTABLISH THE STATUS OF A PAYEE OR BENEFICIAL OWNER AS A U.S. OR FOREIGN PERSON.
(B)
EACH PAYEE REQUIRED TO DELIVER TO BORROWING AGENT AND AGENT A
VALID WITHHOLDING CERTIFICATE PURSUANT TO SECTION 3.11(A) HEREOF SHALL DELIVER
SUCH VALID WITHHOLDING CERTIFICATE AS FOLLOWS:
(I) EACH PAYEE WHICH IS A PARTY
HERETO ON THE CLOSING DATE SHALL DELIVER SUCH VALID WITHHOLDING CERTIFICATE AT
LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE FIRST DATE ON WHICH ANY INTEREST OR
FEES ARE PAYABLE BY ANY BORROWER HEREUNDER FOR THE ACCOUNT OF SUCH PAYEE; (II)
EACH PAYEE SHALL DELIVER SUCH VALID WITHHOLDING CERTIFICATE AT LEAST FIVE (5)
BUSINESS DAYS BEFORE THE EFFECTIVE DATE OF SUCH ASSIGNMENT OR PARTICIPATION
(UNLESS AGENT IN ITS SOLE DISCRETION SHALL PERMIT SUCH PAYEE TO DELIVER SUCH
WITHHOLDING CERTIFICATE LESS THAN FIVE (5) BUSINESS DAYS BEFORE SUCH DATE IN
WHICH CASE IT SHALL BE DUE ON THE DATE SPECIFIED BY AGENT).
EACH PAYEE WHICH SO
DELIVERS A VALID WITHHOLDING CERTIFICATE FURTHER UNDERTAKES TO DELIVER TO
BORROWING AGENT AND AGENT TWO (2) ADDITIONAL COPIES OF SUCH