THE CONDUCT OF A TRADE OR BUSINESS IN THE UNITED
STATES OR CERTIFYING TO SUCH LENDER'S LEGAL ENTITLEMENT TO AN EXEMPTION FROM
U.S. FEDERAL WITHHOLDING TAX WITH RESPECT TO ALL INTEREST PAYMENTS HEREUNDER
AND/OR CERTIFYING AS PROVIDED ON FORM W-8IMY. IN ADDITION, EACH LENDER THAT IS
NOT A BANK SHALL CERTIFY ON A "NON-BANK CERTIFICATE" PROVIDED BY THE
ADMINISTRATIVE AGENT THAT SUCH LENDER IS NOT A "BANK" WITHIN THE MEANING OF
SECTION 881(C)(3)(A) OF THE INTERNAL REVENUE CODE.
IF THE FORM PROVIDED BY A
LENDER AT THE TIME SUCH LENDER FIRST BECOMES A PARTY TO THIS AGREEMENT INDICATES
A UNITED STATES INTEREST WITHHOLDING TAX RATE IN EXCESS OF ZERO, WITHHOLDING TAX
AT SUCH RATE SHALL BE CONSIDERED EXCLUDED FROM "TAXES" AS DEFINED IN SECTION
8.04(A) IMPOSED BY THE UNITED STATES.
(E)
EACH LENDER ORGANIZED UNDER THE LAWS OF A JURISDICTION WITHIN THE
UNITED STATES, ON OR PRIOR TO THE DATE OF ITS EXECUTION AND DELIVERY OF THIS
AGREEMENT IN THE CASE OF EACH LENDER LISTED ON THE SIGNATURE PAGES HEREOF, ON OR
PRIOR TO THE DATE ON WHICH IT BECOMES A LENDER IN THE CASE OF EACH OTHER LENDER,
AND FROM TIME TO TIME THEREAFTER IF REASONABLY REQUESTED IN WRITING BY THE
BORROWER (BUT ONLY SO LONG AS SUCH LENDER REMAINS LAWFULLY ABLE TO DO SO), SHALL
PROVIDE THE BORROWER WITH INTERNAL REVENUE SERVICE FORM W-9, OR ANY SUCCESSOR
FORM PRESCRIBED BY THE INTERNAL REVENUE SERVICE (TOGETHER WITH ANY FORM,
DOCUMENTATION OR INFORMATION SUCH LENDER IS REQUIRED OR CHOOSES TO TRANSMIT WITH
ANY SUCH FORMS).
(F)
FOR ANY PERIOD WITH RESPECT TO WHICH A LENDER HAS FAILED TO
PROVIDE THE BORROWER WITH THE APPROPRIATE FORM PURSUANT TO SECTION 8.04(D) OR
(E) (UNLESS SUCH FAILURE IS DUE TO A CHANGE IN TREATY, LAW OR REGULATION
OCCURRING SUBSEQUENT TO THE DATE ON WHICH A FORM
36
ORIGINALLY WAS REQUIRED TO BE PROVIDED), SUCH LENDER SHALL NOT BE ENTITLED TO
GROSS-UP OR INDEMNIFICATION UNDER SECTION 8.04(B) OR (C) (AS APPLICABLE) WITH
RESPECT TO TAXES IMPOSED BY THE UNITED STATES; PROVIDED, HOWEVER, THAT SHOULD A
LENDER, WHICH IS OTHERWISE EXEMPT FROM OR SUBJECT TO A REDUCED RATE OF
WITHHOLDING TAX, BECOME SUBJECT TO TAXES BECAUSE OF ITS FAILURE TO DELIVER A
FORM REQUIRED HEREUNDER, THE BORROWER SHALL TAKE SUCH STEPS AS SUCH LENDER SHALL
REASONABLY REQUEST TO ASSIST SUCH LENDER TO RECOVER SUCH TAXES.
(G)
IF THE BORROWER IS REQUIRED TO PAY ADDITIONAL AMOUNTS TO OR FOR
THE ACCOUNT OF ANY LENDER PURSUANT TO THIS SECTION 8.04, THEN SUCH LENDER WILL
CHANGE THE JURISDICTION OF ITS LENDING OFFICE SO AS TO ELIMINATE OR REDUCE ANY
SUCH ADDITIONAL PAYMENT WHICH MAY THEREAFTER ACCRUE IF SUCH CHANGE, IN THE
JUDGMENT OF SUCH LENDER, IS NOT OTHERWISE DISADVANTAGEOUS TO SUCH LENDER.
SECTION 8.05.
BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR
LOANS.
IF (I) THE OBLIGATION OF ANY LENDER TO MAKE EURO-DOLLAR LOANS TO THE
BORROWER HAS BEEN SUSPENDED PURSUANT TO SECTION 8.02 OR (II) ANY LENDER HAS
DEMANDED COMPENSATION UNDER SECTION 8.03 WITH RESPECT TO ITS