and such Non-U.S. Person's country
of residence; or (iii) because such payments are portfolio interest exempt
pursuant to Section 871(h) or 881(c) of the Code.
(II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (I) ABOVE, IN THE CASE OF AN
ASSIGNMENT, PARTICIPATION OR TRANSFER MADE AT THE REQUEST OF THE BORROWER OR AN
ASSIGNMENT, PARTICIPATION OR TRANSFER MADE PURSUANT TO SECTION 2.17, IF A
TRANSFEREE, IN ITS GOOD FAITH JUDGMENT, IS ELIGIBLE FOR AN EXEMPTION FROM, OR
REDUCED RATE OF, U.S. FEDERAL WITHHOLDING TAX ON PAYMENTS BY THE LOAN PARTIES
HEREUNDER, SUCH TRANSFEREE SHALL USE ITS REASONABLE BEST EFFORTS TO PROVIDE THE
BORROWER AND THE ADMINISTRATIVE AGENT WITH THE APPROPRIATE FORMS AND
CERTIFICATIONS THAT WILL PERMIT SUCH PAYMENTS TO BE MADE WITHOUT WITHHOLDING OR
AT A REDUCED RATE.
(III) THE ADMINISTRATIVE AGENT AND EACH LENDER (OR TRANSFEREE) THAT IS A U.S.
PERSON WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE CODE (OTHER THAN ANY
SUCH PERSON THAT IS TREATED AS A CORPORATION FOR UNITED STATES FEDERAL INCOME
TAX PURPOSES) SHALL DELIVER TO THE ADMINISTRATIVE AGENT ON OR BEFORE THE DATE
SUCH PERSON BECOMES A PARTY TO THIS AGREEMENT A DULY COMPLETED UNITED STATES
INTERNAL
56
REVENUE SERVICE FORM W-9 (OR SUCCESSOR FORM) ESTABLISHING THAT SUCH PERSON IS
NOT SUBJECT TO U.S. FEDERAL BACKUP WITHHOLDING.
(IV) NOTWITHSTANDING ANY PROVISION OF THIS SECTION 2.19 ABOVE TO THE CONTRARY,
THE BORROWER SHALL NOT HAVE ANY OBLIGATION TO PAY ANY TAXES OR OTHER TAXES OR TO
INDEMNIFY ANY LENDER (OR TRANSFEREE) OR THE ADMINISTRATIVE AGENT FOR SUCH TAXES
OR OTHER TAXES PURSUANT TO THIS SECTION 2.19 TO THE EXTENT THAT SUCH TAXES OR
OTHER TAXES RESULT FROM (I) THE FAILURE OF SUCH LENDER (OR TRANSFEREE) OR THE
ADMINISTRATIVE AGENT TO COMPLY WITH ITS OBLIGATIONS PURSUANT TO THIS
PARAGRAPH (F) OR (II) ANY REPRESENTATION MADE HEREUNDER OR ON ANY SUCH FORM OR
CERTIFICATION (OR SUCCESSOR APPLICABLE FORM OR CERTIFICATION) BY THE LENDER (OR
TRANSFEREE) OR THE ADMINISTRATIVE AGENT INCURRING SUCH TAXES OR OTHER TAXES
PROVING TO HAVE BEEN INCORRECT, FALSE OR MISLEADING IN ANY MATERIAL RESPECT WHEN
SO MADE OR DEEMED TO BE MADE.
NOTHING CONTAINED HEREIN SHALL REQUIRE THE
ADMINISTRATIVE AGENT OR ANY LENDER (OR TRANSFEREE) TO MAKE ITS TAX RETURNS (OR
ANY OTHER INFORMATION RELATING TO ITS TAXES WHICH IT DEEMS CONFIDENTIAL)
AVAILABLE TO THE BORROWER OR ANY OTHER PERSON.
SECTION 2.20. DUTY TO MITIGATE; REPLACEMENT OF LENDERS.
(A)
ANY OF THE
ADMINISTRATIVE AGENT OR THE LENDERS (OR TRANSFEREES) CLAIMING ANY ADDITIONAL
AMOUNTS PAYABLE PURSUANT TO SECTION 2.14 OR 2.19 SHALL USE REASONABLE EFFORTS
(CONSISTENT WITH LEGAL AND REGULATORY RESTRICTIONS) TO FILE ANY CERTIFICATE OR
DOCUMENT REQUESTED BY THE BORROWER OR TO CHANGE THE JURISDICTION OF ITS
APPLICABLE LENDING OFFICE IF, THE MAKING OF SUCH FILING OR CHANGE WOULD AVOID
THE NEED FOR OR REDUCE THE AMOUNT OF ANY SUCH ADDITIONAL AMOUNTS THAT MAY
THEREAFTER ACCRUE OR AVOID THE CIRCUMSTANCES GIVING RISE TO SUCH EXERCISE AND
WOULD NOT, IN THE SOLE DETERMINATION OF SUCH LENDER (OR TRANSFEREE) OR THE
ADMINISTRATIVE AGENT, AS THE CASE