Auditors’ Determination. (i) If the relevant German Guarantor claims that a Capital Impairment or Liquidity Impairment would occur on payment under this German Guaranty and the Administrative Agent has requested an Auditors’ Determination (as defined below), the German Guarantor shall (at its own cost and expense) arrange for the preparation of a balance sheet by a firm of recognized auditors (the “Auditors”) in order to have such Auditors determine whether (and if so, to what extent) any payment under this German Guaranty would cause a Capital Impairment or Liquidity Impairment (the “Auditors’ Determination”).
(ii) The Auditors’ Determination shall be prepared, taking into account the adjustments set out in Section 11.12(d) above, by applying the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as constantly applied by the relevant German Guarantor in the preparation of its financial statements, in particular in the preparation of its most recent annual balance sheet, and taking into consideration applicable court rulings of German courts. Subject to Section 11.12(h) below, such Auditors’ Determination shall be binding on the relevant German Guarantor, the Administrative Agent.
(iii) Even if the relevant German Guarantor arranges for the preparation of an Auditors’ Determination, the relevant German Guarantor’s obligations under the mitigation provisions set out in Section 11.12(e) above shall continue to exist.
Auditors’ Determination. All determinations required to be made under this Article shall be made by the independent outside certified public accounting firm last used by the Company before the event described in Code Section 280G giving rise to the excise tax, or such other certified public accounting firm as the parties shall mutually agree, which auditors shall provide detailed supporting calculations to the Company and Employee. In computing taxes, the auditors shall use the highest marginal federal, state and local income tax rates applicable to Employee and shall assume the phase out of personal exemptions and personal deductions to the extent projected to be applicable to Employee for purposes of computing federal income tax liability.
Auditors’ Determination. (i) If the relevant German Guarantor claims that a Capital Impairment would occur on payment under this Guaranty, the German Guarantor may (at its own cost and expense) arrange for the preparation of a balance sheet as of the date on which the payment under this Guaranty is sought (Stichtagsbilanz) by a firm of recognized auditors (the “Auditors”) in order to have such Auditors determine whether (and if so, to what extent) any payment under this Guaranty would cause a Capital Impairment (the “Auditors’ Determination”) and whether (and if so, to what extent) a realization or other measures undertaken in accordance with the mitigation provisions set out in subsection (e) of this Section 10.08 would not prevent such Capital Impairment).
(ii) The Auditors’ Determination shall be prepared, taking into account the adjustments set out in subsection (d) of this Section 10.08 above, by applying the generally accepted accounting principles applicable from time to time in the Federal Republic of Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as constantly applied by the relevant German Guarantor in the preparation of its financial statements, in particular in the preparation of its most recent annual balance sheet, and taking into consideration applicable court rulings of German courts. Subject to subsection (h) of this Section 10.08, such Auditors’ Determination shall be binding on the relevant German Guarantor and the Administrative Agent except in case of manifest error.
(iii) Even if the relevant German Guarantor arranges for the preparation of an Auditors’ Determination, the relevant German Guarantor’s obligations under the mitigation provisions set out in subsection (e) of this Section 10.08 shall continue to exist.
Auditors’ Determination. (a) If the Lenders disagree with the Management Determination, the Lenders shall be entitled to enforce the Guarantee up to the between the Lenders and the German Guarantor undisputed amount. In relation to the disputed amount the German Guarantor shall, in consultation with the Lenders, within ten (10) Business days following the refusal of the Management Determination by the Lenders, instruct (at its own cost and expense) its auditors or a firm of auditors of international standing and reputation as agreed with the Lenders (the Auditor) to determine within 30 Business Days
(i) the amount of the Net Assets of the German Guarantor taking into account the adjustments mentioned in Clause 18.13.3 (Net Assets) above; and
(ii) to what extent the demanded payment would lead to the occurrence of a Capital Impairment (the Auditor’s Determination).
(b) If the Lenders and the German Guarantor do not agree on an Auditor within ten business days following refusal of the Management Determination by the Lenders, the Lenders shall be entitled to instruct an Auditor in their own discretion and at the own cost and expenses of the German Guarantor.
(c) The amounts determined in the Auditor’s Determination shall be (except for manifest error) binding for all Parties.
Auditors’ Determination. Any determination as to the amount or timing of payments required under this Section 8 shall be made in writing by the Company’s independent accountants or other qualified professional engaged by the Company (the “Auditor”) immediately prior to the Change of Control, whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 8, the Auditor may, after taking into account the information provided by the Executive, make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and the Executive shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section. If the auditor identifies more than one option which would meet the requirements of Paragraph 8.1, the Executive may select among the identified options within 30 days after receiving the Auditor’s written determination. The Company shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8. If, as a result of any reduction required by Paragraph 8.1, amounts previously paid to the Executive exceed the amount to which the Executive is entitled, the Executive will promptly return the excess amount to the Company.
Auditors’ Determination. Unless otherwise agreed, the Corporation shall cause the auditors of the Corporation, at the Corporation’s cost to prepare the Fair Market Value calculation required hereunder.
Auditors’ Determination. (i) If the German Guarantor claims that a Capital Impairment or Liquidity Impairment would occur on payment under the German Guarantee, the German Guarantor may (at its own cost and expense) arrange for the preparation of a balance sheet by a firm of recognised auditors (the “Auditor”) in order to have such Auditor determine whether (and, if so, to what extent) any payment under the German Guarantee would cause a Capital Impairment or Liquidity Impairment (the “Auditor’s Determination”).
(ii) The Auditor’s Determination shall be prepared, taking into account the adjustments set out in Clause 26.2(b) (Net Assets) hereof, by applying the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as constantly applied by the German Guarantor and its general partner in the preparation of their financial statements, in particular in the preparation of its most recent annual balance sheet, and taking into consideration applicable court rulings of German courts. Such Auditor’s Determination shall be binding on the German Guarantor and the Security Agent.
(iii) For the avoidance of doubt, even if the German Guarantor arranges for the preparation of an Auditor’s Determination, the German Guarantor’s obligations under the mitigation provisions set out above continue to exist.
Auditors’ Determination. The Collateral Agent is entitled to enforce the Guarantee and the Collateral in such an amount that is undisputed according to the Management Calculation and the German Guarantor is obliged to pay such undisputed amount to the Agent. With regard to the disputed amount, the German Guarantor shall submit to the Collateral Agent within thirty (30) Business Days after the Collateral Agent has partly or totally rejected the calculation in the Management Calculation a determination prepared by auditors of international standard and reputation (or otherwise accepted by the Collateral Agent) appointed (in coordination with the Collateral Agent) by and at the costs of the German Guarantor confirming to which extent the Guaranty and Collateral can be enforced against the German Guarantor on the date of receipt of the Enforcement Notice (the “Auditors’ Determination”). The Auditors’ Determination has to refer to a recent balance sheet of the German Guarantor or its PLP. The calculation of the Auditors’ Determination is final and binding upon the parties, safe for obvious mistakes. In case the Auditors’ Determination will not be submitted within the stipulated time period, the Agent is entitled to enforce the Guaranty and Collateral against the German Guarantor in full.
Auditors’ Determination. If the relevant German Guarantor claims that a Capital Impairment would occur on payment under this Guaranty, the German Guarantor may (at its own cost and expense) arrange for the preparation of a balance sheet as of the date on which the payment under this Guaranty is sought (Stichtagsbilanz) by a firm of recognized auditors (the “Auditors”) in order to have such Auditors determine whether (and if so, to what extent) any payment under this Guaranty would cause a Capital Impairment (the “Auditors’ Determination”) and whether (and if so, to what extent) a realization or other measures undertaken in accordance with the mitigation provisions set out in subsection (e) of this Section 10.08 would not prevent such Capital Impairment).
Auditors’ Determination. Absent manifest error, the opinion of the auditor retained by the Partnership from time to time shall be final and binding with respect to all computations and determinations required to be made under this Article 12.
