6.4, IT SHALL
WITHIN THIRTY (30) DAYS FROM THE DATE OF SUCH RECEIPT PAY OVER SUCH REFUND TO
THE RELEVANT NOTE PARTY (OR PARTIES) (BUT ONLY TO THE EXTENT OF INDEMNITY
PAYMENTS MADE, OR ADDITIONAL AMOUNTS PAID, BY THE NOTE PARTY WITH RESPECT TO THE
TAXES OR OTHER TAXES GIVING RISE TO SUCH REFUND), NET OF ALL OUT-OF-POCKET
EXPENSES OF SUCH PURCHASER AND WITHOUT INTEREST (OTHER THAN INTEREST PAID BY THE
RELEVANT GOVERNMENTAL AUTHORITY WITH RESPECT TO SUCH REFUND); PROVIDED, HOWEVER,
THAT THE RELEVANT NOTE PARTY (OR PARTIES), UPON THE REQUEST OF THE APPLICABLE
PURCHASER, AGREES TO REPAY THE AMOUNT PAID OVER TO SUCH NOTE PARTY (PLUS
PENALTIES, INTEREST AND OTHER CHARGES AND ANY COSTS AND EXPENSES PAID OR PAYABLE
BY SUCH PURCHASER IN CONNECTION THEREWITH) TO SUCH PURCHASER IN THE EVENT SUCH
PURCHASER IS REQUIRED TO REPAY SUCH REFUND TO SUCH GOVERNMENTAL AUTHORITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS SECTION 6.4(D), (I) ANY
PURCHASER MAY DETERMINE, IN ITS SOLE DISCRETION CONSISTENT WITH ITS INTERNAL
POLICIES, WHETHER OR NOT TO SEEK A TAX REFUND AND (II) NO PURCHASER SHALL BE
REQUIRED TO DISCLOSE ANY CONFIDENTIAL INFORMATION TO THE COMPANY (INCLUDING ITS
TAX RETURNS AND OTHER TAX INFORMATION).
(E)
ANY PURCHASER CLAIMING ANY ADDITIONAL
AMOUNTS PAYABLE PURSUANT TO THIS SECTION 6.4 SHALL USE COMMERCIALLY REASONABLE
EFFORTS (CONSISTENT WITH ITS INTERNAL POLICY AND LEGAL AND REGULATORY
RESTRICTIONS) TO TAKE ANY REASONABLE ACTION THAT WOULD REDUCE THE AMOUNT OF ANY
SUCH ADDITIONAL AMOUNTS THAT MAY THEREAFTER ACCRUE AND WOULD NOT, IN THE SOLE
JUDGMENT OF SUCH PURCHASER, BE OTHERWISE DISADVANTAGEOUS TO SUCH PURCHASER.
(F)
IF A NOTE PARTY MAKES A PAYMENT HEREUNDER
TO A PURCHASER THAT IS A PARTNERSHIP (OR OTHER FISCALLY TRANSPARENT ENTITY) FOR
U.S. FEDERAL INCOME TAX PURPOSES (A "FLOW-THROUGH PURCHASER") AND, IN CONNECTION
THEREWITH, SUCH FLOW-THROUGH PURCHASER SHALL BE REQUIRED TO DEDUCT OR WITHHOLD
ANY TAXES IMPOSED BY ANY TAXATION AUTHORITY IN THE UNITED STATES (OR ANY
POLITICAL AUTHORITY THEREOF OR THEREIN) WITH RESPECT TO THE PORTION OF SUCH
PAYMENT WHICH IS ALLOCABLE TO A NON-U.S. PARTNER OR MEMBER OF SUCH FLOW-THROUGH
PURCHASER (OTHER THAN ANY WITHHOLDING UNDER SECTION 1446 OF THE CODE), SUCH NOTE
PARTY SHALL INDEMNIFY, REIMBURSE AND HOLD HARMLESS SUCH FLOW-THROUGH PURCHASER
FOR ANY SUCH DEDUCTION OR WITHHOLDING (INCLUDING ANY DEDUCTION OR WITHHOLDING
REQUIRED WITH RESPECT TO PAYMENTS MADE UNDER THIS SECTION 6.4(F)); PROVIDED,
HOWEVER, THAT A NOTE PARTY SHALL BE REQUIRED TO MAKE PAYMENTS UNDER THIS SECTION
6.4(F) ONLY WITH RESPECT TO TAXES IMPOSED AS A RESULT OF ANY CHANGE IN
APPLICABLE LAW, TREATY OR GOVERNMENTAL RULE,
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REGULATION OR ORDER, OR ANY CHANGE IN THE INTERPRETATION, ADMINISTRATION OR
APPLICATION THEREOF OCCURRING AFTER THE DATE HEREOF, AND SUCH NOTE PARTY SHALL
NOT BE REQUIRED TO MAKE ANY SUCH PAYMENTS TO THE EXTENT THAT SUCH TAXES WOULD
NOT HAVE BEEN IMPOSED BUT FOR THE FAILURE BY THE NON-U.S. PARTNER OR MEMBER TO
DELIVER TO THE FLOW-THROUGH PURCHASER ANY FORM OR CERTIFICATION WHICH SUCH
PARTNER OR MEMBER IS LEGALLY ENTITLED TO DELIVER AND WHICH IS