(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 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
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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 GERMAN OBLIGOR.
(B)
THE LIMITATIONS SET OUT IN PARAGRAPH (A) OF THIS CLAUSE 21.9 ONLY
APPLY IF AND TO THE EXTENT THAT:
(I)
WITHIN TWENTY (20) BUSINESS DAYS FOLLOWING THE DEMAND AGAINST A
GERMAN OBLIGOR BY THE FACILITY AGENT (ACTING ON BEHALF OF THE FINANCE PARTIES)
(THE "ENVISAGED ENFORCEMENT DATE"), THE MANAGING DIRECTOR(S) ON BEHALF OF SUCH
GERMAN OBLIGOR HAS CONFIRMED IN WRITING TO THE FACILITY AGENT (X) TO WHAT EXTENT
THE PAYMENT OBLIGATION RELATES TO A