TO SUCH GERMAN OBLIGOR OR SUCH SUBSIDIARY)
AGAINST AN OBLIGOR ORGANISED AS A LIMITED LIABILITY COMPANY (GMBH) IN GERMANY (A
"GERMAN OBLIGOR"), TO THE EXTENT THAT THE ENFORCEMENT WOULD OTHERWISE LEAD TO
THE SITUATION THAT THE GERMAN OBLIGOR DID NOT HAVE SUFFICIENT NET ASSETS
(NETTOVERMÖGEN), CALCULATED IN ACCORDANCE WITH THE JURISPRUDENCE FROM TIME TO
TIME OF THE GERMAN FEDERAL SUPREME COUNT (BUNDESGERICHTSHOF) OR ABSENT SUCH
JURISPRUDENCE, THE JURISPRUDENCE OF THE HIGHER REGIONAL COURT
(OBERLANDESGERICHT) OR REGIONAL COURTS (LANDGERICHT) IN THE DISTRICT OF THE
RELEVANT GERMAN OBLIGOR RELATING TO PROTECTION OF LIABLE CAPITAL UNDER SECTIONS
30 AND 31 OF THE GERMAN LIMITED LIABILITY COMPANIES ACT (GMBH-GESETZ)) TO
MAINTAIN ITS STATED SHARE CAPITAL (STAMMKAPITAL) OR INCREASED AN EXISTING
SHORTAGE OF ITS STATED SHARE CAPITAL) PROVIDED THAT FOR THE PURPOSES OF THE
CALCULATION OF THE ENFORCEABLE AMOUNT, IF ANY, THE FOLLOWING BALANCE SHEET ITEMS
SHALL BE ADJUSTED AS FOLLOWS:
(I)
THE AMOUNT OF ANY INCREASE OF STATED SHARE CAPITAL
(STAMMKAPITAL) OF THE GERMAN OBLIGOR THAT HAS BEEN EFFECTED AFTER THE DATE
HEREOF SHALL BE DEDUCTED FROM THE STATED SHARE CAPITAL UNLESS SUCH INCREASE IS
(X) REQUIRED BY LAW OR ENVISAGED IN THE STRUCTURE MEMORANDUM, OR (Y) MATCHED BY
A CORRESPONDING INCREASE IN THE NET ASSETS OF THE RELEVANT
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OBLIGOR, OR (Z) MADE WITH THE CONSENT OF THE FACILITY AGENT (SUCH CONSENT NOT TO
BE UNREASONABLY WITHHELD).
FOR THE AVOIDANCE OF DOUBT, INCREASING THE CAPITAL
RESERVES (RÜCKLAGEN) AS REFERRED TO IN SECTION 266 PARA. 3, ITEMS II. AND III.
OF THE GERMAN COMMERCIAL CODE (HANDELSGESETZBUCH - HGB) OF ANY GERMAN GUARANTOR
SHALL NOT BE RESTRICTED (AND SHALL NOT REQUIRE ANY ADJUSTMENTS TO THE STATED
SHARE CAPITAL) BY VIRTUE OF THIS PARAGRAPH; AND/OR
(II)
ANY AMOUNT OF MANDATORY RESERVES (RÜCKLAGEN) RESULTING
FROM A DECREASE OF REGISTERED SHARE CAPITAL (KAPITALHERABSETZUNG) AND ANY AMOUNT
OF PUBLIC SUBSIDIES (SUBVENTIONEN UND ANDERE ÖFFENTLICHE BEIHILFEN) RECEIVED
AFTER THE DATE HEREOF WHICH ARE SUBJECT TO AN UNFULFILLED COMMITMENT AS TO THEIR
USE SHALL BE ADDED TO THE REGISTERED SHARE CAPITAL; AND/OR
(III)
LOANS PROVIDED AFTER THE DATE HEREOF TO THE GERMAN
OBLIGOR, INSOFAR SUCH LOANS QUALIFY AS EQUITY UNDER THE APPLICABLE ACCOUNTING
PRINCIPLES AND WHICH DO NOT HAVE TO BE SHOWN AS LIABILITIES ON THE GERMAN
OBLIGOR'S BALANCE SHEET, SHALL BE DISREGARDED; AND/OR
(IV)
TO THE EXTENT THE ENFORCEMENT OF THE GUARANTEE WOULD
DEPRIVE THE GERMAN OBLIGOR OF THE ABILITY TO FULFIL ITS OBLIGATIONS TO THIRD
PARTIES (INCURRED, WHETHER ON A CONTINGENT OR NON-CONTINGENT BASIS, AT THE TIME
OF ENFORCEMENT OR TO CONTINUE ITS BUSINESS, THEN, FOR THE DETERMINATION OF NET
ASSETS, THE ASSETS OF THE GERMAN OBLIGOR SHALL BE CALCULATED AT THE LESSER OF
THEIR BOOK VALUE (BUCHWERT) AND THEIR REALISATION VALUE ASSUMING A NEGATIVE
PROGNOSIS FOR THE BUSINESS CONTINUANCE (LIQUIDATIONSWERT BEI NEGATIVER
FORTFÜHRUNGSPROGNOSE); AND/OR
(V)
LOANS AND OTHER CONTRACTUAL LIABILITIES INCURRED BY THE
GERMAN OBLIGOR IN VIOLATION OF THE PROVISIONS OF ANY OF THE FINANCE DOCUMENTS
SHALL BE DISREGARDED TO THE EXTENT SUCH VIOLATION CAN BE ATTRIBUTED TO WILFUL
MISCONDUCT OF THE MANAGING DIRECTOR (GESCHÄFTSFÜHRER) OF THE