ITS ENTIRETY HEREBY.
THE PARTIES HERETO
ACKNOWLEDGE AND AGREE THAT (I) THIS AGREEMENT, ANY NOTES DELIVERED PURSUANT TO
SECTION 2.10(G) AND THE OTHER CREDIT DOCUMENTS EXECUTED AND DELIVERED IN
CONNECTION HEREWITH DO NOT CONSTITUTE A NOVATION OR TERMINATION OF THE
OBLIGATIONS UNDER THE EXISTING CREDIT AGREEMENT AS IN EFFECT PRIOR TO THE
EFFECTIVE DATE AND (II) SUCH OBLIGATIONS ARE IN ALL RESPECTS CONTINUING WITH
ONLY THE TERMS THEREOF BEING MODIFIED AS PROVIDED IN THIS AGREEMENT.
(B)
NOTWITHSTANDING THE MODIFICATIONS EFFECTED BY THIS AGREEMENT OF
THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWERS CONTAINED IN THE
EXISTING CREDIT AGREEMENT, THE BORROWERS ACKNOWLEDGE AND AGREE THAT ANY CAUSES
OF ACTION OR OTHER RIGHTS CREATED IN FAVOR OF ANY LENDER AND ITS SUCCESSORS
ARISING OUT OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWERS
CONTAINED IN OR DELIVERED (INCLUDING REPRESENTATIONS, WARRANTIES AND COVENANTS
DELIVERED IN CONNECTION WITH THE MAKING OF THE LOANS OR OTHER EXTENSIONS OF
CREDIT THEREUNDER) IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT SHALL
SURVIVE THE EXECUTION AND
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DELIVERY OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT IT IS UNDERSTOOD AND AGREED
THAT THE BORROWERS' MONETARY OBLIGATIONS UNDER THE EXISTING CREDIT AGREEMENT IN
RESPECT OF THE LOANS AND LETTERS OF CREDIT THEREUNDER SHALL ON AND AFTER THE
EFFECTIVE DATE BE EVIDENCED BY THIS AGREEMENT AS PROVIDED IN ARTICLE II HEREOF.
(C)
ALL INDEMNIFICATION OBLIGATIONS OF THE BORROWERS PURSUANT TO THE
EXISTING CREDIT AGREEMENT (INCLUDING ANY ARISING FROM A BREACH OF THE
REPRESENTATIONS THEREUNDER) SHALL SURVIVE THE AMENDMENT AND RESTATEMENT OF THE
EXISTING CREDIT AGREEMENT PURSUANT TO THIS AGREEMENT.
SECTION 9.20.
German Tax Confirmation.
(A)
UPON THE WRITTEN REQUEST OF A SUBSIDIARY BORROWER TAX-RESIDENT IN
GERMANY (EACH A "GERMAN BORROWER"), AND ADDITIONALLY AS PROVIDED IN PARAGRAPH
(D) BELOW, EACH LENDER SHALL, TO THE EXTENT IT MAY LAWFULLY DO SO, AS SOON AS
REASONABLY PRACTICABLE, ISSUE A CONFIRMATION IN SUBSTANTIALLY THE FORM ATTACHED
HERETO AS EXHIBIT E (EACH A "TAX CONFIRMATION"), BUT NOT MORE THAN ONCE A YEAR
UNLESS THE BORROWER DEMONSTRATES TO THE SATISFACTION OF THE ADMINISTRATIVE AGENT
THAT MORE THAN ONE TAX CONFIRMATION IS REQUIRED IN A PARTICULAR YEAR, IN ORDER
TO ENABLE THE RESPECTIVE GERMAN BORROWER TO PROVIDE SUCH INFORMATION AS IT DEEMS
APPROPRIATE TO THE GERMAN TAX AUTHORITIES REGARDING THE ABSENCE OF ANY
BACK-TO-BACK FINANCING WITHIN THE MEANING OF THE PUBLIC DECREES OF THE TAX
AUTHORITIES (THE "DECREES") TO SECTION 8A OF THE GERMAN CORPORATE INCOME TAX ACT
(KÖRPERSCHAFTSTEUERGESETZ) DATED 15 JULY 2004 AND 22 JULY 2005.
(B)
EACH GERMAN BORROWER WILL FORWARD TO THE LENDERS SUCH INFORMATION
WHICH MAY BE REASONABLY REQUIRED BY ANY LENDER (BASED ON THE THEN APPLICABLE
PRACTICE OF THE GERMAN TAX AUTHORITIES) TO ENABLE SUCH LENDER TO ISSUE THE TAX
CONFIRMATION.
NO TAX CONFIRMATION ISSUED BY A LENDER SHALL CONTAIN ANY
STATEMENTS THAT SUCH LENDER IS NOT PERMITTED TO ISSUE BY LAW, ADMINISTRATIVE
RULE OR REGULATION OF THE JURISDICTION TO WHICH SUCH LENDER OR ANY OF ITS
AFFILIATES IS SUBJECT.
(C)
EACH OF THE BORROWERS CONFIRMS TO EACH LENDER AND TO THE
ADMINISTRATIVE AGENT