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 PRIMARY LIABILITY WHICH IS AN
UP-STREAM OR CROSS-STREAM LIABILITY AS DESCRIBED IN PARAGRAPH (A), AND (Y) WHICH
AMOUNT OF SUCH UP-STREAM AND/OR CROSS-STREAM LIABILITY CANNOT BE ENFORCED AS IT
WOULD EXCEED THE NET ASSETS OF THE GERMAN OBLIGOR, AND SUCH CONFIRMATION IS
SUPPORTED BY
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CONCLUSIVE EVIDENCE SATISFACTORY TO THE FACILITY AGENT, INCLUDING IN PARTICULAR,
PRO FORMA INTERIM FINANCIAL STATEMENTS AS OF THE ENVISAGED ENFORCEMENT DATE (THE
"MANAGEMENT DETERMINATION"), AND THE FACILITY AGENT HAS NOT CONTESTED THE
MANAGEMENT DETERMINATION; OR
(II)
WITHIN 40 BUSINESS DAYS FROM THE DATE THE FACILITY
AGENT (ACTING ON BEHALF OF THE FINANCE PARTIES) HAS CONTESTED THE MANAGEMENT
DETERMINATION, THE FACILITY AGENT RECEIVES A DETERMINATION BY AUDITORS OF
INTERNATIONAL STANDARD AND REPUTATION (THE "AUDITOR'S DETERMINATION") APPOINTED
BY THE GERMAN OBLIGOR, OF THE AMOUNT OF THE NET ASSETS ON THE ENVISAGED
ENFORCEMENT DATE.
(C)
IF THE FACILITY AGENT DISAGREES WITH
THE AUDITOR'S DETERMINATION, IT SHALL BE ENTITLED TO FURTHER PURSUE THEIR CLAIMS
AND/OR RIGHTS (IF ANY) UNDER THE DISPUTE SOLUTIONS AGREED UPON AND, IN
PARTICULAR, TO CONTEST THE AUDITOR'S DETERMINATION IN COURT, AND THE GERMAN
OBLIGOR SHALL BE ENTITLED TO PROVE THAT THIS AMOUNT IS NECESSARY FOR MAINTAINING
ITS STATED SHARE CAPITAL (CALCULATED AS OF THE DATE THE DEMAND FOR PAYMENT
AND/OR ENFORCEMENT WAS MADE).
(D)
THE GERMAN OBLIGOR SHALL USE REASONABLE
EFFORTS TO REALIZE ANY AND ALL OF ITS ASSETS THAT ARE SHOWN IN THE BALANCE SHEET
WITH A BOOK VALUE (BUCHWERT) THAT IT IS SIGNIFICANTLY LOWER THAN THE MARKET
VALUE OF THE ASSETS, OR ARE NOT RECORDED AT ALL IN A SITUATION WHERE THE GERMAN
OBLIGOR DOES NOT HAVE SUFFICIENT NET ASSETS TO MAINTAIN ITS REGISTERED SHARE
CAPITAL, PROVIDED THAT THE RELEVANT ASSETS ARE IN THE REASONABLE OPINION OF THE
GERMAN OBLIGOR NOT REQUIRED FOR THE BUSINESS OF THE GERMAN OBLIGOR (NICHT
BETRIEBSNOTWENDIGES VERMÖGEN).
(E)
THE FINANCE PARTIES' RIGHT TO CLAIM
AND/OR ENFORCE A PAYMENT OBLIGATION (OTHER THAN A PAYMENT OBLIGATION OF A GERMAN
OBLIGOR OR OF ANY DIRECT OR INDIRECT SUBSIDIARY OF A GERMAN OBLIGOR UNDER THE
TERM FACILITIES OR THE REVOLVING FACILITY MADE AVAILABLE TO SUCH GERMAN OBLIGOR
OR SUBSIDIARY) SHALL BE EXCLUDED AT ALL, OR EXIST ONLY TO A LIMITED AMOUNT, IF
THE GERMAN OBLIGOR DELIVERS WITHIN THE ENVISAGED ENFORCEMENT DATE A LEGAL
OPINION ISSUED BY A LAW FIRM OF INTERNATIONAL STANDARD AND REPUTATION WITH
GERMAN QUALIFIED LAWYERS (RECHTSANWÄLTE) WHICH:
(I)
COMES TO THE CONCLUSION THAT THE GERMAN OBLIGOR
COMPLYING WITH ITS OBLIGATIONS UNDER ANY OF THE FINANCE DOCUMENTS HAS EXPOSED
AND/OR WOULD EXPOSE (BASED ON LEGAL LITERATURE WHICH IS (IN THE VIEW OF