Nautilus 2005 Annual Report Download - page 110

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(d) Each Lender that is not (i) a citizen or resident of the United States of America, (ii) a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any jurisdiction thereof), or (iii) an estate or trust that is subject to federal
income taxation regardless of the source of its income (any such Person, a “Non-U.S. Lender”) shall deliver to Borrower and Agent two copies
of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a statement with respect to
such interest and a Form W-8BEN, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such
Non
-
U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by Credit Parties under
this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement or such other Loan Document. In addition, each Non-U.S. Lender shall deliver such forms or appropriate replacements
promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify Borrower at any time it determines that such Lender is no longer in a position to provide any previously delivered certificate to
Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purpose).
(e) The agreements in this Section 3.2 shall survive the termination of the Loan Documents and the payment of the Loans and all other
amounts payable hereunder.
Section 3.3. Funding Losses . Borrower agrees to indemnify each Lender, promptly after receipt of a written request therefor, and to hold
each Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of (a) default by Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after Borrower has given a notice requesting the same in accordance with
the provisions of this Agreement, (b) default by Borrower in making any prepayment of or conversion from Eurodollar Loans after Borrower
has given a notice thereof in accordance with the provisions of this Agreement, (c) the making of a prepayment of a Eurodollar Loan on a day
that is not the last day of an Interest Period applicable thereto, (d) the making of a prepayment of a Swing Loan on a day that is not the Swing
Loan Maturity Date applicable thereto, or (e) any conversion of a Eurodollar Loan to a Base Rate Loan on a day that is not the last day of an
Interest Period applicable thereto. Such indemnification shall be in an amount equal to the excess, if any, of (i) the amount of interest that
would have accrued on the amounts so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or
of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue,
the Interest Period that would have commenced on the date of such failure) or the applicable Swing Loan Maturity Date in each case at the
applicable rate of interest for such Loans provided for herein over (ii) the amount of interest (as reasonably determined by such Lender) that
would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the
appropriate London interbank market, along with any administration fee charged by such Lender. A certificate as to any amounts payable
pursuant to this Section 3.3 submitted to Borrower (with a copy to Agent) by any Lender shall be conclusive absent manifest error. The
obligations of Borrower pursuant to this Section 3.3 shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
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