SELLER, OF PAYMENT OF TAXES OR OTHER TAXES, AS THE
CASE MAY BE; PROVIDED, FURTHER, THAT BUYER GIVES NOTICE TO SELLER OF ALL
DEFICIENCY NOTICES RECEIVED BY BUYER.
D)
ANY FOREIGN BUYER SHALL PROVIDE SELLER
WITH PROPERLY COMPLETED UNITED STATES INTERNAL REVENUE SERVICE (IRS) FORM W-8BEN
OR W-8ECI OR ANY SUCCESSOR FORM PRESCRIBED BY THE IRS, CERTIFYING THAT SUCH
BUYER IS ENTITLED TO BENEFITS UNDER AN INCOME TAX TREATY TO WHICH THE UNITED
STATES IS A PARTY WHICH REDUCES THE RATE OF WITHHOLDING TAX ON PAYMENTS OF
INTEREST OR CERTIFYING THAT THE INCOME RECEIVABLE PURSUANT TO THIS AGREEMENT IS
EFFECTIVELY CONNECTED WITH THE CONDUCT OF A TRADE OR BUSINESS IN THE UNITED
STATES ON OR PRIOR TO THE DATE UPON WHICH EACH SUCH FOREIGN BUYER BECOMES A
BUYER.
EACH FOREIGN BUYER WILL RESUBMIT THE APPROPRIATE FORM ON THE EARLIEST OF
(A) THE THIRD ANNIVERSARY OF THE PRIOR SUBMISSION OR (B) ON OR BEFORE THE
EXPIRATION OF THIRTY (30) DAYS AFTER THERE IS A "CHANGE IN CIRCUMSTANCES" WITH
RESPECT TO SUCH BUYER AS DEFINED IN TREAS. REG. SECTION 1.1441(E)(4)(II)(D).
FOR ANY PERIOD WITH RESPECT TO WHICH A FOREIGN BUYER HAS FAILED TO PROVIDE
SELLER WITH THE APPROPRIATE FORM OR OTHER RELEVANT DOCUMENT PURSUANT TO THIS
SECTION 8(D) (UNLESS SUCH FAILURE IS DUE TO A CHANGE IN TREATY, LAW, OR
REGULATION OCCURRING SUBSEQUENT TO THE DATE ON WHICH A FORM ORIGINALLY WAS
REQUIRED TO BE PROVIDED), SUCH BUYER SHALL NOT BE ENTITLED TO ANY "GROSS-UP" OF
TAXES OR INDEMNIFICATION UNDER SECTION 8(C) WITH RESPECT TO TAXES IMPOSED BY THE
UNITED STATES; PROVIDED, HOWEVER, THAT SHOULD A FOREIGN BUYER, WHICH IS
OTHERWISE EXEMPT FROM A WITHHOLDING TAX, BECOME SUBJECT TO TAXES
19
BECAUSE OF ITS FAILURE TO DELIVER A FORM REQUIRED HEREUNDER, SELLER SHALL TAKE
SUCH STEPS AS SUCH FOREIGN BUYER SHALL REASONABLY REQUEST TO ASSIST SUCH FOREIGN
BUYER TO RECOVER SUCH TAXES.
E)
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY
OTHER AGREEMENT OF SELLER HEREUNDER, THE AGREEMENTS AND OBLIGATIONS OF SELLER
CONTAINED IN THIS SECTION 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
NOTHING CONTAINED IN THIS SECTION 8 SHALL REQUIRE BUYER TO MAKE AVAILABLE ANY OF
ITS TAX RETURNS OR OTHER INFORMATION THAT IT DEEMS TO BE CONFIDENTIAL OR
PROPRIETARY.
F)
EACH PARTY TO THIS AGREEMENT
ACKNOWLEDGES THAT IT IS ITS INTENT FOR PURPOSES OF U.S. FEDERAL, STATE AND LOCAL
INCOME AND FRANCHISE TAXES TO TREAT EACH TRANSACTION AS INDEBTEDNESS OF SELLER
THAT IS SECURED BY THE PURCHASED ASSETS AND THAT THE PURCHASED ASSETS ARE OWNED
BY SELLER IN THE ABSENCE OF A DEFAULT BY SELLER.
ALL PARTIES TO THIS AGREEMENT
AGREE TO SUCH TREATMENT AND AGREE TO TAKE NO ACTION INCONSISTENT WITH THIS
TREATMENT, UNLESS REQUIRED BY LAW.
9.
SECURITY INTEREST
A)
SELLER AND BUYER INTEND THAT THE
TRANSACTIONS HEREUNDER BE SALES TO BUYER OF THE PURCHASED ASSETS AND NOT LOANS
FROM BUYER TO SELLER SECURED BY THE PURCHASED ASSETS. HOWEVER, IN ORDER TO
PRESERVE BUYER'S RIGHTS UNDER THIS AGREEMENT IN THE EVENT THAT A COURT OR OTHER
FORUM