NO LENDER SHALL BE
REQUIRED TO PROVIDE A FORM THAT SUCH LENDER IS NOT LEGALLY ABLE TO DELIVER. IN
ADDITION, SUCH LENDER AGREES THAT FROM TIME TO TIME, WHEN A LAPSE IN TIME OR
CHANGE IN CIRCUMSTANCES RENDERS THE PREVIOUS CERTIFICATION INVALID OR INACCURATE
IN ANY MATERIAL RESPECT, IT WILL PROMPTLY DELIVER TO BORROWER TWO NEW ACCURATE
AND COMPLETE ORIGINAL SIGNED COPIES OF INTERNAL REVENUE SERVICE FORM W-8ECI OR
W-8BEN (OR SUCCESSOR FORMS) AND SUCH OTHER FORMS AS MAY BE REQUIRED IN ORDER TO
CONFIRM OR ESTABLISH THE ENTITLEMENT OF SUCH LENDER TO A CONTINUED EXEMPTION
FROM OR REDUCTION IN UNITED STATES WITHHOLDING TAX WITH RESPECT TO PAYMENTS
UNDER THE NOTE OR THIS AGREEMENT, OR IT SHALL IMMEDIATELY NOTIFY BORROWER OF ITS
INABILITY TO DELIVER ANY SUCH FORM, IN WHICH CASE SUCH LENDER SHALL NOT BE
REQUIRED TO DELIVER ANY SUCH FORM PURSUANT TO THIS SECTION 3.17(B).
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, (X) BORROWER SHALL BE
ENTITLED, TO THE EXTENT REQUIRED TO DO SO BY LAW, TO DEDUCT OR WITHHOLD INCOME
OR SIMILAR TAXES IMPOSED BY A GOVERNMENTAL AUTHORITY FROM INTEREST, FEES OR
OTHER AMOUNTS PAYABLE HEREUNDER FOR THE ACCOUNT OF ANY SUCH LENDER TO THE EXTENT
THAT SUCH LENDER HAS NOT PROVIDED TO THE BORROWER PROPERLY COMPLETED AND
EXECUTED DOCUMENTATION THAT ESTABLISHES A COMPLETE EXEMPTION FROM SUCH DEDUCTION
OR WITHHOLDING (WHICH, WITH RESPECT TO THE UNITED STATES AND POLITICAL
SUBDIVISIONS THEREOF, SHALL BE INTERNAL REVENUE SERVICE FORMS DESCRIBED IN THIS
SECTION 3.17(B), AND, WITH RESPECT TO ANY OTHER GOVERNMENTAL AUTHORITY, SHALL BE
REQUESTED IN WRITING BY BORROWER), (Y) BORROWER SHALL NOT BE OBLIGATED TO
GROSS-UP PAYMENTS TO BE MADE TO SUCH LENDER IN RESPECT OF TAXES IMPOSED BY A
GOVERNMENTAL AUTHORITY IF SUCH LENDER HAS NOT PROVIDED TO THE BORROWER PROPERLY
COMPLETED AND EXECUTED DOCUMENTATION REASONABLY REQUESTED BY BORROWER, AS WOULD
PERMIT BORROWER TO MAKE PAYMENTS WITHOUT WITHHOLDING OR AT A REDUCED RATE,
PROVIDED
55
THAT THE FOREGOING SHALL NOT APPLY IF SUCH LENDER IS NOT LEGALLY ABLE TO OR
ENTITLED TO DELIVER SUCH DOCUMENTATION, AND (Z) BORROWER SHALL NOT BE OBLIGATED
TO GROSS-UP PAYMENTS UNDER SECTION 3.17(A) TO BE MADE TO SUCH LENDER IN RESPECT
OF ANY TAX THAT IS IN EFFECT AND WOULD APPLY TO AMOUNTS PAYABLE TO SUCH LENDER
AT THE TIME SUCH LENDER BECOMES A PARTY TO THIS AGREEMENT, EXCEPT TO THE EXTENT
THE ASSIGNOR WITH RESPECT TO SUCH LENDER WOULD HAVE BEEN ENTITLED AT THE TIME OF
ASSIGNMENT TO RECEIVE ADDITIONAL AMOUNTS FROM BORROWER WITH RESPECT TO ANY TAX
PURSUANT TO THIS SECTION 3.17. OTHER THAN AS SET FORTH IN THIS SECTION 3.17(B),
BORROWER AGREES TO PAY ADDITIONAL AMOUNTS AS PROVIDED IN SECTION 3.17(A) AND TO
INDEMNIFY EACH LENDER AND ITS ASSIGNEES AND TRANSFEREES IN RESPECT OF ANY TAXES
DEDUCTED OR WITHHELD BY IT AS A RESULT OF ANY CHANGES THAT ARE EFFECTIVE AFTER
THE CLOSING DATE IN ANY APPLICABLE LAW, TREATY, GOVERNMENTAL RULE, REGULATION,
GUIDELINE OR OTHER, OR IN THE INTERPRETATION THEREOF, RELATING TO THE DEDUCTING
OR WITHHOLDING OF SUCH