WHICH
SUCH BANK OR THE ADMINISTRATIVE AGENT (AS THE CASE MAY BE) IS ORGANIZED OR ANY
POLITICAL SUBDIVISION THEREOF AND, IN THE CASE OF EACH BANK, TAXES IMPOSED ON
ITS INCOME, AND FRANCHISE OR SIMILAR TAXES IMPOSED ON IT, BY THE JURISDICTION OF
SUCH BANK'S APPLICABLE LENDING OFFICE OR ANY POLITICAL SUBDIVISION THEREOF OR BY
ANY OTHER JURISDICTION (OR ANY POLITICAL SUBDIVISION THEREOF) AS A RESULT OF A
PRESENT OR FORMER CONNECTION BETWEEN SUCH BANK OR THE ADMINISTRATIVE AGENT AND
SUCH OTHER JURISDICTION OR BY THE UNITED STATES, EXCEPT TO THE EXTENT THAT SUCH
CONNECTION WOULD NOT HAVE ARISEN BUT FOR ENTERING INTO THE TRANSACTIONS
CONTEMPLATED HEREBY (ALL SUCH NON-EXCLUDED TAXES, DUTIES, LEVIES, IMPOSTS,
DEDUCTIONS, CHARGES, WITHHOLDINGS AND LIABILITIES BEING HEREINAFTER REFERRED TO
AS "NON-EXCLUDED TAXES"). IF THE BORROWER SHALL BE REQUIRED BY LAW TO DEDUCT ANY
NON-EXCLUDED TAXES FROM OR IN RESPECT OF ANY SUM PAYABLE HEREUNDER OR UNDER ANY
NOTE, (I) THE SUM PAYABLE SHALL BE INCREASED AS NECESSARY SO THAT AFTER MAKING
ALL REQUIRED DEDUCTIONS (INCLUDING, WITHOUT LIMITATION, DEDUCTIONS APPLICABLE TO
ADDITIONAL SUMS PAYABLE UNDER THIS SECTION 8.4) SUCH BANK OR THE ADMINISTRATIVE
AGENT (AS THE CASE MAY BE) RECEIVES AN AMOUNT EQUAL TO THE SUM IT WOULD HAVE
RECEIVED HAD NO SUCH DEDUCTIONS BEEN MADE, (II) THE BORROWER SHALL MAKE SUCH
DEDUCTIONS, (III) THE BORROWER SHALL PAY THE FULL AMOUNT DEDUCTED TO THE
RELEVANT TAXATION AUTHORITY OR OTHER AUTHORITY IN ACCORDANCE WITH APPLICABLE LAW
AND (IV) THE BORROWER SHALL FURNISH TO THE ADMINISTRATIVE AGENT, AT ITS ADDRESS
REFERRED TO IN SECTION 9.1, THE ORIGINAL OR A CERTIFIED COPY OF A RECEIPT
EVIDENCING PAYMENT THEREOF.
(B)
IN ADDITION, THE BORROWER AGREES TO PAY ANY
PRESENT OR FUTURE STAMP OR DOCUMENTARY TAXES AND ANY OTHER EXCISE OR PROPERTY
TAXES, OR CHARGES OR SIMILAR LEVIES WHICH ARISE FROM ANY PAYMENT MADE HEREUNDER
OR UNDER ANY NOTE OR FROM THE EXECUTION OR DELIVERY OF, OR OTHERWISE WITH
RESPECT TO, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (HEREINAFTER REFERRED TO
AS "OTHER TAXES").
(C)
IN THE EVENT THAT NON-EXCLUDED TAXES NOT
IMPOSED ON THE CLOSING DATE ARE IMPOSED, OR NON-EXCLUDED TAXES IMPOSED ON THE
CLOSING DATE INCREASE, THE APPLICABLE BANK SHALL NOTIFY THE ADMINISTRATIVE AGENT
AND THE BORROWER OF SUCH EVENT IN WRITING WITHIN A REASONABLE PERIOD FOLLOWING
RECEIPT OF KNOWLEDGE THEREOF. NOTWITHSTANDING THE FOREGOING, IF SUCH BANK SHALL
FAIL TO NOTIFY THE BORROWER OF ANY SUCH EVENT WITHIN NINETY (90) DAYS FOLLOWING
THE END OF THE MONTH DURING WHICH SUCH EVENT OCCURRED, THEN THE BORROWER'S
LIABILITY FOR SUCH
67
ADDITIONAL NON-EXCLUDED TAXES INCURRED BY SUCH BANK AS A RESULT OF SUCH EVENT
(INCLUDING PAYMENT OF A MAKE WHOLE AMOUNT UNDER SECTION 8.4(A)(I)) SHALL BE
LIMITED TO THOSE ATTRIBUTABLE TO THE PERIOD OCCURRING SUBSEQUENT TO THE
NINETIETH (90TH) DAY PRIOR TO, BUT EXCLUDING, THE DATE UPON WHICH SUCH BANK
ACTUALLY NOTIFIED THE BORROWER OF THE OCCURRENCE OF SUCH EVENT.
(D)
THE BORROWER AGREES TO INDEMNIFY EACH BANK
AND THE ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF NON-EXCLUDED TAXES OR OTHER