IN WHICH SUCH
GERMAN BORROWER'S ASSETS (THE CALCULATION OF WHICH SHALL TAKE INTO ACCOUNT THE
CAPTIONS REFLECTED IN SECTION 266 SUBSECTION (2) A, B AND C OF THE GERMAN
COMMERCIAL CODE (HGB, HANDELSGESETZBUCH)) LESS THE SUM OF (A) THE LIABILITIES OF
SUCH GERMAN BORROWER (THE CALCULATION OF WHICH SHALL TAKE INTO ACCOUNT THE
CAPTIONS REFLECTED IN SECTION 266 SUB-SECTION (3) B, C AND D OF THE GERMAN
COMMERCIAL CODE), AND (B) THE STATED SHARE CAPITAL (STAMMKAPITAL) OF SUCH GERMAN
BORROWER (THE "NET ASSETS") ARE LESS THAN ZERO;
(I)
FOR THE PURPOSES OF THE CALCULATION OF
THE NET ASSETS FOLLOWING BALANCE SHEET ITEMS SHALL BE ADJUSTED AS FOLLOWS:
(A)
THE AMOUNT OF ANY INCREASE OF THE STATED SHARE CAPITAL
AFTER THE DATE HEREOF (EXCLUDING ANY SUCH INCREASE OF STATED SHARE CAPITAL
PERMITTED PURSUANT TO ANY OTHER AGREEMENT TO WHICH THE LOAN PARTIES AND SUCH
GERMAN BORROWER ARE A PARTY) (A) THAT HAS BEEN EFFECTED WITHOUT THE PRIOR
WRITTEN CONSENT OF THE LENDERS, (B) THAT HAS BEEN
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EFFECTED OUT OF RETAINED EARNINGS (KAPITALERHÖHUNG AUS GESELLSCHAFTSMITTELN) OR
TO THE EXTENT THAT IT IS NOT FULLY PAID UP, SHALL BE DEDUCTED FROM THE STATED
SHARE CAPITAL; AND
(B)
LOANS AND OTHER CONTRACTUAL LIABILITIES INCURRED IN
GROSSLY NEGLIGENT (GROB FAHRLÄSSIG) OR WILFUL (VORSÄTZLICH) VIOLATION OF THE
PROVISIONS OF THE LOAN DOCUMENTS SHALL BE DISREGARDED;
(II)
IN ADDITION, SUCH GERMAN BORROWER SHALL
REALISE, TO THE EXTENT LEGALLY PERMITTED AND COMMERCIALLY JUSTIFIABLE, IN A
SITUATION WHERE SUCH GERMAN BORROWER'S NET ASSETS ARE OR BECOME AS A CONSEQUENCE
OF PAYMENT OR PERFORMANCE UNDER THE JOINT AND SEVERAL LIABILITY LESS THAN ZERO
ANY AND ALL OF ITS ASSETS THAT ARE SHOWN IN THE BALANCE SHEET WITH A BOOK VALUE
(BUCHWERT) THAT IS SIGNIFICANTLY LOWER THAN THE MARKET VALUE OF THE ASSETS IF
THE ASSET IS NOT NECESSARY FOR SUCH GERMAN BORROWER'S BUSINESS
(BETRIEBSNOTWENDIG);
(III)
FOR THE PURPOSE OF THE CALCULATION OF THE
NET ASSETS AND THUS THE ENFORCEABLE AMOUNT, SUCH GERMAN BORROWER WILL DELIVER
WITHIN THIRTY DAYS FOLLOWING THE DEMAND AGAINST SUCH GERMAN BORROWER UNDER THIS
SECTION 2.15 BY THE LENDERS, TO THE LENDERS AN UP TO DATE BALANCE SHEET DRAWN-UP
BY A FIRM OF AUDITORS OF INTERNATIONAL STANDARD AND REPUTE TOGETHER WITH A
DETERMINATION OF THE NET ASSETS.
SUCH BALANCE SHEET AND DETERMINATION OF NET
ASSETS SHALL BE PREPARED IN ACCORDANCE WITH ACCOUNTING PRINCIPLES PURSUANT TO
THE GERMAN COMMERCIAL CODE AND BE BASED ON THE SAME PRINCIPLES THAT WERE APPLIED
WHEN ESTABLISHING THE PREVIOUS YEAR'S BALANCE SHEET;
(IV)
THE DETERMINATION BY THE AUDITORS (AS SET
FORTH ABOVE, THE "AUDITORS' DETERMINATION") PERTAINING TO SUCH GERMAN BORROWER
SHALL BE UP TO DATE AND IN ANY EVENT SUCH AUDITORS' DETERMINATION SHALL HAVE
BEEN PREPARED AS OF A DATE NO EARLIER THAN FIFTEEN BUSINESS DAYS PRIOR TO THE
DATE OF THE ENFORCEMENT OF THE SECURITY INTEREST CREATED UNDER THIS AGREEMENT;
AND
(V)
SHOULD SUCH GERMAN BORROWER FAIL TO DELIVER
SUCH BALANCE SHEET AND/OR DETERMINATION OF THE NET ASSETS, THE LENDERS SHALL BE
ENTITLED TO ENFORCE THE JOINT AND SEVERAL LIABILITY