PROVIDED THAT THE BORROWER, UPON THE REQUEST OF THE LENDER OR AGENT, AGREES TO
REPAY THE AMOUNT PAID OVER TO THE BORROWER (PLUS ANY PENALTIES, INTEREST OR
OTHER CHARGES IMPOSED BY THE RELEVANT GOVERNMENTAL AUTHORITY) TO THE LENDER OR
AGENT IN THE EVENT THE LENDER OR AGENT IS REQUIRED TO REPAY SUCH REFUND TO SUCH
GOVERNMENTAL AUTHORITY. A LENDER OR AGENT SHALL CLAIM ANY REFUND OF INDEMNIFIED
TAXES OR OTHER TAXES THAT IT DETERMINES IN ITS SOLE DISCRETION, EXERCISED IN
GOOD FAITH, IS AVAILABLE TO IT, UNLESS IT CONCLUDES IN ITS SOLE DISCRETION THAT
IT WOULD BE ADVERSELY AFFECTED BY MAKING SUCH A CLAIM. NO LENDER OR AGENT SHALL
BE OBLIGED TO DISCLOSE ANY INFORMATION REGARDING ITS TAX AFFAIRS OR COMPUTATIONS
OR ANY OTHER INFORMATION IT DEEMS CONFIDENTIAL TO ANY LOAN PARTY IN CONNECTION
WITH THIS CLAUSE (H) OR ANY OTHER PROVISION OF THIS SECTION 5.4.
65
(H)
IF THE BORROWER DETERMINES THAT A REASONABLE BASIS
EXISTS FOR CONTESTING A TAX, EACH LENDER OR AGENT, AS THE CASE MAY BE, SHALL USE
REASONABLE EFFORTS TO COOPERATE WITH THE BORROWER AS THE BORROWER MAY REASONABLY
REQUEST IN CHALLENGING SUCH TAX. SUBJECT TO THE PROVISIONS OF SECTION 2.12, EACH
LENDER AND AGENT AGREE TO USE REASONABLE EFFORTS TO COOPERATE WITH THE BORROWER
AS THE BORROWER MAY REASONABLY REQUEST TO MINIMIZE ANY AMOUNT PAYABLE BY THE
BORROWER OR ANY GUARANTOR PURSUANT TO THIS SECTION 5.4. THE BORROWER SHALL
INDEMNIFY AND HOLD EACH LENDER AND AGENT HARMLESS AGAINST ANY OUT-OF-POCKET
EXPENSES INCURRED BY SUCH PERSON IN CONNECTION WITH ANY REQUEST MADE BY THE
BORROWER PURSUANT TO THIS SECTION 5.4(H). NOTHING IN THIS SECTION 5.4(H) SHALL
OBLIGATE ANY LENDER OR AGENT TO TAKE ANY ACTION THAT SUCH PERSON, IN ITS SOLE
JUDGMENT, DETERMINES MAY RESULT IN A MATERIAL DETRIMENT TO SUCH PERSON.
(I)
EACH LENDER AND AGENT THAT IS A UNITED STATES
PERSON UNDER SECTION 7701(A)(30) OF THE CODE (EACH, A "U.S. LENDER") SHALL, TO
THE EXTENT IT CAN LEGALLY DO SO, DELIVER TO THE BORROWER AND THE ADMINISTRATIVE
AGENT TWO UNITED STATES INTERNAL REVENUE SERVICE FORMS W-9 (OR SUBSTITUTE OR
SUCCESSOR FORM), PROPERLY COMPLETED AND DULY EXECUTED, CERTIFYING THAT SUCH
LENDER OR AGENT IS EXEMPT FROM UNITED STATES FEDERAL BACKUP WITHHOLDING TAX (I)
ON OR PRIOR TO THE CLOSING DATE (OR ON OR PRIOR TO THE DATE IT BECOMES A PARTY
TO THIS AGREEMENT), (II) ON OR BEFORE THE DATE THAT SUCH FORM EXPIRES OR BECOMES
OBSOLETE, (III) AFTER THE OCCURRENCE OF A CHANGE IN THE AGENT'S OR LENDER'S
CIRCUMSTANCES REQUIRING A CHANGE IN THE MOST RECENT FORM PREVIOUSLY DELIVERED BY
IT TO THE BORROWER AND THE ADMINISTRATIVE AGENT, AND (IV) FROM TIME TO TIME
THEREAFTER IF REASONABLY REQUESTED BY THE BORROWER OR THE ADMINISTRATIVE AGENT.
(J)
THE AGREEMENTS IN THIS SECTION 5.4 SHALL SURVIVE
THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER.
5.5.
COMPUTATIONS OF INTEREST.
INTEREST ON LIBOR
LOANS AND ABR LOANS SHALL BE CALCULATED ON THE BASIS OF A 360-DAY YEAR