LENDER; OR
(VII)
IN THE CASE OF A NON-EXEMPT LENDER THAT (A) IS
NOT A UNITED STATES PERSON AND (B) IS ACTING IN THE CAPACITY AS AN
"INTERMEDIARY" (AS DEFINED IN U.S. TREASURY REGULATIONS), (X)(I) A U.S. INTERNAL
REVENUE SERVICE FORM W-8IMY (OR ANY SUCCESSOR FORM THERETO) (INCLUDING ALL
REQUIRED DOCUMENTS AND ATTACHMENTS) AND (II) A SECTION 2.04 CERTIFICATE, AND (Y)
IF THE INTERMEDIARY IS A "NON-QUALIFIED INTERMEDIARY" (AS DEFINED IN U.S.
TREASURY REGULATIONS), FROM EACH PERSON UPON WHOSE BEHALF THE "NON-QUALIFIED
INTERMEDIARY" IS ACTING THE DOCUMENTS THAT WOULD BE REQUIRED BY CLAUSE (I),
(II), (III), (IV), (V), (VI), AND/OR THIS CLAUSE (VII) WITH RESPECT TO EACH SUCH
PERSON IF EACH SUCH PERSON WERE LENDER.
IF THE FORMS REFERRED TO ABOVE IN THIS SECTION 2.04(F) THAT ARE PROVIDED BY THE
LENDER AT THE TIME THE LENDER FIRST BECOMES A PARTY TO THIS AGREEMENT INDICATE A
UNITED STATES INTEREST WITHHOLDING TAX RATE IN EXCESS OF ZERO, WITHHOLDING TAX
AT SUCH RATE SHALL BE TREATED AS TAXES OTHER THAN "NON-EXCLUDED TAXES"
("EXCLUDED TAXES") AND SHALL NOT QUALIFY AS NON-EXCLUDED TAXES UNLESS AND UNTIL
THE LENDER PROVIDES THE APPROPRIATE FORM CERTIFYING THAT A LESSER RATE APPLIES,
WHEREUPON WITHHOLDING TAX AT SUCH LESSER RATE SHALL BE CONSIDERED EXCLUDED TAXES
SOLELY FOR THE PERIODS GOVERNED BY SUCH FORM.
(G)
IF, HOWEVER, ON THE DATE THE LENDER
TRANSFEREE BECOMES A PARTY TO THIS AGREEMENT, THE LENDER TRANSFEROR WAS ENTITLED
TO INDEMNIFICATION OR ADDITIONAL AMOUNTS UNDER
28
THIS SECTION 2.04, THEN, TO SUCH EXTENT (AND ONLY TO SUCH EXTENT), THE TERM
"NON-EXCLUDED TAXES" SHALL INCLUDE (IN ADDITION TO TAXES THAT MAY BE IMPOSED IN
THE FUTURE OR OTHER AMOUNTS OTHERWISE INCLUDABLE IN TAXES) SUCH TAXES, IF ANY,
APPLICABLE WITH RESPECT TO THE LENDER TRANSFEREE ON SUCH DATE.
ANY ADDITIONAL
TAXES IN RESPECT OF A LENDER THAT RESULT SOLELY AND DIRECTLY FROM A CHANGE IN
THE PRINCIPAL OFFICE OF SUCH LENDER SHALL BE TREATED AS EXCLUDED TAXES UNLESS
(A) ANY SUCH ADDITIONAL TAXES ARE IMPOSED AS A RESULT OF A CHANGE IN THE
APPLICABLE REQUIREMENT OF LAW, OR IN THE INTERPRETATION OR APPLICATION THEREOF,
OCCURRING AFTER THE DATE OF SUCH CHANGE OR (B) SUCH CHANGE IS MADE PURSUANT TO
THE TERMS OF SECTION 2.04(I) OR OTHERWISE AS A RESULT OF A REQUEST THEREFOR BY
THE BORROWERS.
(H)
FOR ANY PERIOD WITH RESPECT TO WHICH THE
LENDER HAS FAILED TO PROVIDE THE BORROWERS WITH THE APPROPRIATE FORM,
CERTIFICATE OR OTHER DOCUMENT DESCRIBED IN SECTION 2.04(F) (OTHER THAN (I) IF
SUCH FAILURE IS DUE TO A CHANGE IN ANY LAW, OR IN THE INTERPRETATION OR
APPLICATION THEREOF, OCCURRING AFTER THE DATE ON WHICH A FORM, CERTIFICATE OR
OTHER DOCUMENT ORIGINALLY WAS REQUIRED TO BE PROVIDED, (II) IF SUCH FORM,
CERTIFICATE OR OTHER DOCUMENT OTHERWISE IS NOT REQUIRED UNDER SECTION 2.04(F) OR
(III) IF IT IS LEGALLY INADVISABLE OR OTHERWISE COMMERCIALLY DISADVANTAGEOUS FOR
THE LENDER TO DELIVER SUCH FORM, CERTIFICATE OR OTHER DOCUMENT), THE LENDER
SHALL NOT BE ENTITLED TO PAYMENT OR INDEMNIFICATION UNDER SECTIONS 2.04 (B) OR
(D) WITH