SUBDIVISION OR TAXING AUTHORITY THEREOF OR THEREIN) FROM INTEREST,
FEES OR OTHER AMOUNTS PAYABLE HEREUNDER FOR THE ACCOUNT OF ANY LENDER WHICH IS
NOT A UNITED STATES PERSON (AS SUCH TERM IS DEFINED IN SECTION 7701(A)(30) OF
THE CODE) FOR U.S. FEDERAL INCOME TAX PURPOSES TO THE EXTENT THAT SUCH LENDER
HAS NOT PROVIDED TO THE BORROWER U.S. INTERNAL REVENUE SERVICE FORMS THAT
ESTABLISH A COMPLETE EXEMPTION FROM SUCH DEDUCTION OR WITHHOLDING AND (Y) THE
BORROWER SHALL NOT BE OBLIGATED PURSUANT TO SECTION 4.04(A) HEREOF TO GROSS-UP
PAYMENTS TO BE MADE TO A LENDER IN RESPECT OF INCOME OR SIMILAR TAXES IMPOSED BY
THE UNITED STATES IF (I) SUCH LENDER HAS NOT PROVIDED TO THE BORROWER THE
INTERNAL REVENUE SERVICE FORMS REQUIRED TO BE PROVIDED TO THE BORROWER PURSUANT
TO THIS SECTION 4.04(B) OR (II) IN THE CASE OF A PAYMENT, OTHER THAN INTEREST,
TO A LENDER DESCRIBED IN CLAUSE (II) ABOVE, TO THE EXTENT THAT SUCH FORMS DO NOT
ESTABLISH A COMPLETE EXEMPTION FROM WITHHOLDING OF SUCH TAXES.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THE PRECEDING SENTENCE OR ELSEWHERE IN
THIS SECTION 4.04 AND EXCEPT AS SET FORTH IN SECTION 12.04(B), THE BORROWER
AGREES TO PAY ANY ADDITIONAL AMOUNTS AND TO INDEMNIFY EACH LENDER IN THE MANNER
SET FORTH IN SECTION 4.04(A) (WITHOUT REGARD TO THE IDENTITY OF THE JURISDICTION
REQUIRING THE DEDUCTION OR WITHHOLDING) IN RESPECT OF ANY TAXES DEDUCTED OR
WITHHELD BY IT AS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE AS A RESULT OF
ANY CHANGES THAT ARE EFFECTIVE AFTER THE
31
DETERMINATION DATE IN ANY APPLICABLE LAW, TREATY, GOVERNMENTAL RULE, REGULATION,
GUIDELINE OR ORDER, OR IN THE INTERPRETATION THEREOF, RELATING TO THE DEDUCTING
OR WITHHOLDING OF SUCH TAXES.
(C)
IF A CREDIT PARTY PAYS ANY ADDITIONAL
AMOUNT UNDER THIS SECTION 4.04 TO A LENDER AND SUCH LENDER DETERMINES IN ITS
SOLE DISCRETION THAT IT HAS ACTUALLY RECEIVED OR REALIZED IN CONNECTION
THEREWITH ANY REFUND OR ANY REDUCTION OF, OR CREDIT AGAINST, ITS TAX LIABILITIES
IN OR WITH RESPECT TO THE TAXABLE YEAR IN WHICH THE ADDITIONAL AMOUNT IS PAID (A
"TAX BENEFIT"), SUCH LENDER SHALL PAY TO SUCH CREDIT PARTY AN AMOUNT THAT THE
LENDER SHALL, IN ITS SOLE DISCRETION, DETERMINE IS EQUAL TO THE NET BENEFIT,
AFTER TAX, WHICH WAS OBTAINED BY THE LENDER IN SUCH YEAR AS A CONSEQUENCE OF
SUCH TAX BENEFIT; PROVIDED, HOWEVER, THAT (I) ANY LENDER MAY DETERMINE, IN ITS
SOLE DISCRETION CONSISTENT WITH THE POLICIES OF SUCH LENDER, WHETHER TO SEEK A
TAX BENEFIT; (II) ANY TAXES THAT ARE IMPOSED ON A LENDER AS A RESULT OF A
DISALLOWANCE OR REDUCTION (INCLUDING THROUGH THE EXPIRATION OF ANY TAX CREDIT
CARRYOVER OR CARRYBACK OF SUCH LENDER THAT OTHERWISE WOULD NOT HAVE EXPIRED) OF
ANY TAX BENEFIT WITH RESPECT TO WHICH SUCH LENDER HAS MADE A PAYMENT TO A CREDIT
PARTY PURSUANT TO THIS SECTION 4.04(C) SHALL BE TREATED AS A TAX FOR WHICH THE
CREDIT PARTY IS OBLIGATED TO INDEMNIFY SUCH LENDER PURSUANT TO THIS SECTION 4.04
WITHOUT ANY