Nautilus 2007 Annual Report Download - page 130

5.10 Foreign Lenders .
5.10.1 Exemption . Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the
jurisdiction in which an Obligor is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
under any Loan Document shall deliver to Agent and Borrower Agent, at the time or times prescribed by Applicable Law or reasonably
requested by Agent or Borrower Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by Agent or
Borrower Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by Agent or Borrower
Agent as will enable Agent and Borrower Agent to determine whether or not such Lender is subject to backup withholding or information
reporting requirements.
5.10.2 Documentation . Without limiting the generality of the foregoing, if a Borrower is resident for tax purposes in the United
States, a Foreign Lender shall deliver to Agent and Borrower Agent (in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender hereunder (and from time to time thereafter upon the request of Agent or
Borrower Agent, but only if such Foreign Lender is legally entitled to do so), (a) duly completed copies of IRS Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a party; (b) duly completed copies of IRS Form W-8ECI; (c) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (i) a certificate
to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of any Obligor within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Code, and (ii) duly completed copies of IRS Form W-8BEN; or (d) any other form prescribed by Applicable
Law as a basis for claiming exemption from or a reduction in United States federal withholding tax, duly completed together with such
supplementary documentation as may be prescribed by Applicable Law to permit Borrowers to determine the withholding or deduction
required to be made.
5.11 Nature and Extent of Each Borrower’s Liability .
5.11.1 Joint and Several Liability . Each Borrower agrees that it is jointly and severally liable for, and absolutely and unconditionally
guarantees to Agent and Lenders the prompt payment and performance of, all Obligations and all agreements under the Loan Documents.
Each Borrower agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment and not of collection, that such
obligations shall not be discharged until Full Payment of the Obligations, and that such obligations are absolute and unconditional,
irrespective of (a) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any
Obligations or Loan Document, or any other document, instrument or agreement to which any Obligor is or may become a party or be
bound; (b) the absence of any action to enforce this Agreement (including this Section) or any other Loan Document, or any waiver,
consent or indulgence of any kind by Agent or any Lender with respect thereto; (c) the existence, value or condition of, or failure to perfect
a Lien or to preserve rights against, any security or guaranty for the Obligations or any action, or the absence of any action, by Agent or
any Lender in respect thereof (including the release of any security or guaranty); (d) the insolvency of any Obligor; (e) any election by
Agent or any Lender in an Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code; (f) any borrowing or
grant of a Lien by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (g) the
disallowance of any claims of Agent or any Lender against any Obligor for the repayment of any Obligations under Section 502 of the
Bankruptcy Code or otherwise; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, except Full Payment of all Obligations.
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