(J)
EACH OBLIGOR ACKNOWLEDGES THAT THE
FACILITY AGENT MAY ONLY DELIVER A CERTIFICATE IF AND TO THE EXTENT ANY OBLIGOR
HAS RELEASED THE FACILITY AGENT FROM ITS GENERAL OBLIGATION TO MAINTAIN
CONFIDENTIALITY AND HEREWITH RELEASES THE FACILITY AGENT AND EACH LENDER FROM
THE BANKING CONFIDENTIALITY (BANKGEHEIMNIS) AND ANY OTHER CONFIDENTIALITY
OBLIGATION FOR PURPOSES OF THE ISSUANCE AND DELIVERY OF THE CERTIFICATES SOLELY
WITH RESPECT TO SUCH INFORMATION THAT IS REQUIRED TO BE INCLUDED IN THE
CERTIFICATE, AND SOLELY VIS-À-VIS THE OTHER OBLIGORS, THE TAX AUTHORITIES AND
THE OTHER FINANCE PARTIES.
IF THE FACILITY AGENT HAS NOT BEEN RELEASED FROM
SUCH BANKING CONFIDENTIALITY AND OTHER CONFIDENTIALITY OBLIGATIONS BY ANY PERSON
PROVIDING A GUARANTEE TO SECURE ANY LIABILITIES OF THE RELEVANT GERMAN BORROWER,
THE CERTIFICATES WILL ONLY STATE THAT FURTHER GUARANTEES HAVE BEEN GRANTED.
17.
INCREASED COSTS
17.1
INCREASED COSTS
(A)
SUBJECT TO CLAUSE 17.3 (EXCEPTIONS) THE
COMPANY SHALL, WITHIN THREE BUSINESS DAYS OF A DEMAND BY THE FACILITY AGENT, PAY
FOR THE ACCOUNT OF A FINANCE PARTY THE AMOUNT OF ANY INCREASED COSTS INCURRED BY
THAT FINANCE PARTY OR ANY OF ITS AFFILIATES AS A RESULT OF (I) THE INTRODUCTION
OF OR ANY CHANGE IN (OR IN THE INTERPRETATION, ADMINISTRATION OR APPLICATION OF)
ANY LAW OR REGULATION OR (II) COMPLIANCE WITH ANY LAW OR REGULATION MADE AFTER
THE DATE OF THIS AGREEMENT.
(B)
IN THIS AGREEMENT "INCREASED COSTS"
MEANS:
(I)
A REDUCTION IN THE RATE OF RETURN FROM A FACILITY OR
ON A FINANCE PARTY'S (OR ITS AFFILIATE'S) OVERALL CAPITAL;
(II)
AN ADDITIONAL OR INCREASED COST; OR
(III)
A REDUCTION OF ANY AMOUNT DUE AND PAYABLE UNDER ANY
FINANCE DOCUMENT,
which is incurred or suffered by a Finance Party or any of its Affiliates to the
extent that it is attributable to that Finance Party having entered into its
Commitments or an Ancillary Commitment or funding or performing its obligations
under any Finance Document or Bank Guarantee.
17.2
INCREASED COST CLAIMS
(A)
A FINANCE PARTY INTENDING TO MAKE A
CLAIM PURSUANT TO CLAUSE 17.1 (INCREASED COSTS) SHALL NOTIFY THE FACILITY AGENT
OF THE EVENT GIVING RISE TO THE CLAIM, FOLLOWING WHICH THE FACILITY AGENT SHALL
PROMPTLY NOTIFY THE COMPANY.
67
(B)
EACH FINANCE PARTY SHALL, AS SOON AS
PRACTICABLE AFTER A DEMAND BY THE FACILITY AGENT, PROVIDE A CERTIFICATE
CONFIRMING THE AMOUNT OF ITS INCREASED COSTS TOGETHER WITH REASONABLE DETAILS OF
THE BASIS OF CALCULATION.
17.3
EXCEPTIONS
(A)
CLAUSE 17.1 (INCREASED COSTS) DOES NOT
APPLY TO THE EXTENT ANY INCREASED COST IS:
(I)
ATTRIBUTABLE TO A TAX DEDUCTION REQUIRED BY LAW TO BE
MADE BY AN OBLIGOR; AND
(II)
COMPENSATED FOR BY CLAUSE 16.3 (TAX INDEMNITY) (OR
WOULD HAVE BEEN COMPENSATED FOR UNDER CLAUSE 16.3 (TAX INDEMNITY) BUT WAS NOT SO
COMPENSATED SOLELY BECAUSE ANY OF THE EXCLUSIONS IN PARAGRAPH (B) OF CLAUSE 16.3
(TAX INDEMNITY) APPLIED); OR
(III)
COMPENSATED FOR BY THE PAYMENT OF THE MANDATORY COST; OR
(IV)
ATTRIBUTABLE TO THE WILFUL BREACH BY THE RELEVANT FINANCE
PARTY OR ITS AFFILIATES OF ANY LAW OR REGULATION.
(B)
IN