DELIVER TO EACH GERMAN BORROWER AS SOON AS
REASONABLY PRACTICABLE AFTER THE FACILITIES HAVE BEEN MADE AVAILABLE TO SUCH
GERMAN BORROWER AND SUBJECT TO COMPLIANCE BY THE GERMAN BORROWERS WITH PARAGRAPH
(C) BELOW, A COMPLETE LETTER IN THE FORM OF THE SAMPLE BACK-TO-BACK CERTIFICATE
AS PUBLISHED BY THE
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GERMAN FEDERAL MINISTRY OF FINANCE (BUNDESFINANZMINISTERIUM) ON 20 OCTOBER 2005
(IV B7 - S2742A - 43/05) AS ATTACHED AS SCHEDULE 14 (FORM OF CERTIFICATE), OR IN
THE FORM OF ANY SUCCESSOR SAMPLE FORM AS MAY BE REQUIRED BY THE GERMAN TAX
AUTHORITIES (THE "CERTIFICATE"). THE FACILITY AGENT (ACTING ON BEHALF OF THE
LENDERS) SHALL SEND TO THE RELEVANT GERMAN BORROWER UPON REQUEST OF SUCH GERMAN
BORROWER AN UPDATED CERTIFICATE AS SOON AS REASONABLY PRACTICABLE (1) UPON ANY
AMENDMENT TO THE FACILITIES OR CHANGE IN THE SECURITY OR GUARANTEES GRANTED IN
RELATION TO THE FACILITIES, (2) IF SO REQUIRED BY THE RELEVANT GERMAN BORROWER
FOR TAX PURPOSES. IF THE GERMAN TAX AUTHORITIES WILL NOT ACCEPT A CERTIFICATE
ISSUED BY THE FACILITY AGENT, EACH LENDER WILL ISSUE A CERTIFICATE INDIVIDUALLY.
(B)
EACH GERMAN BORROWER MAY DISCLOSE THE
EXISTENCE AND CONTENTS OF ANY CERTIFICATE TO ITS PROFESSIONAL ADVISERS, ITS
AFFILIATED COMPANIES (VERBUNDENE UNTERNEHMEN) AND TO ANY TAX, REGULATORY OR
GOVERNMENTAL AUTHORITY ASSERTING JURISDICTION OVER IT.
(C)
FOR PURPOSES OF ENABLING THE FACILITY
AGENT TO ISSUE A CERTIFICATE ON BEHALF OF THE LENDER, THE RESPECTIVE GERMAN
BORROWER WILL PROVIDE THE FACILITY AGENT WITH A LIST OF GUARANTEES, DISPOSAL
RESTRICTIONS AND OTHER RELEVANT INFORMATION AS REQUIRED PURSUANT TO THE SAMPLE
CERTIFICATE, TOGETHER WITH ANY WRITTEN REQUEST FOR THE ISSUANCE OF A
CERTIFICATE.
(D)
EACH OBLIGOR AND EACH LENDER UNDERTAKES
TO INFORM THE FACILITY AGENT WITHOUT UNDUE DELAY IF IT BECOMES AWARE OF ANY
INCORRECTNESS OR INCOMPLETENESS OF A CERTIFICATE GIVEN OR TO BE GIVEN FROM TIME
TO TIME PURSUANT TO PARAGRAPH (A) ABOVE.
(E)
IT IS THE COMMON UNDERSTANDING OF THE
PARTIES THAT:
(I)
EACH CERTIFICATE IS GIVEN BY THE FACILITY AGENT FOR
THE PURPOSE OF DELIVERY TO THE COMPETENT TAX AUTHORITIES OF THE GERMAN BORROWERS
TO ASSIST THE GERMAN BORROWERS IN THE ADMINISTRATION OF THEIR TAX AFFAIRS AND
NOT FOR ANY OTHER PURPOSE;
(II)
THE FACILITY AGENT AND THE LENDERS ARE NOT RESPONSIBLE
FOR EXAMINING THE GERMAN BORROWERS' TAX POSITION AND THAT THE CERTIFICATES DO
NOT GUARANTEE THE ACHIEVEMENT OR AMOUNT OF A SPECIFIC RESULT OR CONCLUSION FOR
TAX PURPOSES OR THE SUITABILITY OF A CERTIFICATE TO PROVIDE THE COUNTERPROOF AS
SET OUT IN THE RELEVANT GERMAN TAX DECREES;
(III)
EACH CERTIFICATE WILL LIST ALL GUARANTEES IRRESPECTIVE OF
WHETHER THEY CAN BE HARMFUL UNDER SECTION 8A OF THE KSTG AND WILL ONLY BE A
DECLARATION OF FACT (WISSENSERKLÄRUNG) AND THERE WILL BE NO FURTHER OBLIGATIONS
OF THE FACILITY AGENT AND/OR THE LENDERS AND NO RESTRICTIONS OF THEIR RIGHTS
UNDER THE FINANCE DOCUMENTS AS A RESULT OF THE ISSUANCE OF ANY CERTIFICATE;
65
(IV)
EACH CERTIFICATE IS ADDRESSED TO AND IS SOLELY FOR THE
BENEFIT OF THE GERMAN BORROWERS IN RELATION TO THIS AGREEMENT;