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 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.
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(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 THE LAWYER GIVING THE
OPINION) WIDELY ACCEPTED AMONG GERMAN LAWYERS, AND/OR COURT DECISIONS ISSUED
AFTER THE DATE OF THIS AGREEMENT IN RELATION TO THE RELEVANT ISSUES WHICH
PRESENT THE RISK OF LIABILITY AS MATERIALLY GREATER THAN THE RISK OF LIABILITY
AS PRESENTED BY LEGAL LITERATURE AND/OR COURT DECISIONS CURRENT ON THE DATE OF
THIS AGREEMENT) THE MANAGING DIRECTORS OF THE GERMAN OBLIGOR (OR ITS
SHAREHOLDER'S OR AN AFFILIATED COMPANY'S MANAGING DIRECTORS, OFFICERS OR BOARD
MEMBERS), OR AN