ANY KIND (INCLUDING OPINIONS OR OTHER TAX
ANALYSES) THAT ARE PROVIDED TO SUCH PARTY RELATING TO SUCH U.S. TAX TREATMENT
AND U.S. TAX STRUCTURE, OTHER THAN ANY INFORMATION FOR WHICH NONDISCLOSURE IS
REASONABLY NECESSARY IN ORDER TO COMPLY WITH APPLICABLE SECURITIES LAWS.
12.
CHANGE IN CIRCUMSTANCES
12.1
Increased costs
(A)
SUBJECT TO SECTION 12.3 THE COMPANY SHALL, WITHIN THREE
(3) FUNDING BUSINESS DAYS AFTER A DEMAND BY A FUNDING AGENT OR THE
ADMINISTRATIVE AGENT, PAY (OR PROCURE PAYMENT) FOR THE ACCOUNT OF A FACILITY
INDEMNIFIED PARTY THE AMOUNT OF ANY INCREASED COSTS INCURRED BY THAT FACILITY
INDEMNIFIED PARTY OR ANY OF ITS AFFILIATES AS A RESULT OF (I) ANY CHANGE IN LAW
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 ON A FACILITY INDEMNIFIED
PARTY'S OVERALL CAPITAL;
(II)
AN ADDITIONAL OR INCREASED COST; OR
(III)
A REDUCTION OF ANY AMOUNT DUE AND PAYABLE UNDER THIS AGREEMENT OR
ANY PROGRAM SUPPORT AGREEMENT,
which is incurred or suffered by a Facility Indemnified Party or any of its
Affiliates as a consequence of this Agreement or any Program Support Agreement
or the Loans made or acquired by such Facility Indemnified Party.
12.2
Increased cost claims
(A)
EACH FACILITY INDEMNIFIED PARTY INTENDING TO MAKE A CLAIM PURSUANT
TO SECTION 12.1 SHALL, AS SOON AS REASONABLY PRACTICAL AFTER BECOMING AWARE OF
IT, NOTIFY THE COMPANY, THE MASTER SERVICER AND THE ADMINISTRATIVE AGENT OF THE
EVENT GIVING RISE TO THE CLAIM.
(B)
EACH FACILITY INDEMNIFIED PARTY SHALL, AS SOON AS PRACTICABLE
AFTER A DEMAND BY THE COMPANY (OR THE MASTER SERVICER), PROVIDE TO THE COMPANY,
THE MASTER SERVICE AND THE ADMINISTRATIVE AGENT A CERTIFICATE CONFIRMING THE
AMOUNT OF ITS (OR, IF APPLICABLE, ITS AFFILIATES) INCREASED COSTS AND SETTING
OUT IN REASONABLE DETAIL THOSE INCREASED COSTS AND AN EXPLANATION OF THE
CALCULATION
26
OF SUCH INCREASED COSTS.
SUCH CERTIFICATE SHALL BE CONCLUSIVE IN THE ABSENCE OF
PRIMA FACIE EVIDENCE OF ERROR.
(C)
FAILURE OR DELAY ON THE PART OF ANY
FACILITY INDEMNIFIED PARTY TO DEMAND COMPENSATION PURSUANT TO THIS SECTION 12
SHALL NOT CONSTITUTE A WAIVER OF SUCH FACILITY INDEMNIFIED PARTY'S RIGHT TO
DEMAND SUCH COMPENSATION; PROVIDED THAT THE COMPANY WILL NOT BE REQUIRED TO
COMPENSATE A FACILITY INDEMNIFIED PARTY PURSUANT TO THIS SECTION 12 FOR ANY
INCREASED COSTS INCURRED MORE THAN 270 DAYS PRIOR TO THE DATE THAT SUCH FACILITY
INDEMNIFIED PARTY NOTIFIES THE COMPANY OF THE CHANGE IN ANY REQUIREMENT OF LAW
GIVING RISE TO SUCH INCREASE COSTS AND OF SUCH FACILITY INDEMNIFIED PARTY'S
INTENTION TO CLAIM COMPENSATION THEREFOR; PROVIDED, FURTHER, THAT, IF THE CHANGE
IN ANY REQUIREMENT OF LAW GIVING RISE TO SUCH INCREASED COSTS OR REDUCTIONS IS
RETROACTIVE, THEN THE 270 DAY PERIOD REFERRED TO ABOVE SHALL BE EXTENDED TO
INCLUDE THE PERIOD OF RETROACTIVE EFFECT THEREOF.
12.3
Exceptions
Section 12.1 does not apply to the extent any Increased Cost is:
(A)
ATTRIBUTABLE TO A TAX DEDUCTION REQUIRED BY
LAW