Common use of Auditors’ Determination Clause in Contracts

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. (ia) 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)Guarantee, the German Guarantor shall may (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 and, if so, to what extent) any payment under this German Guaranty Guarantee would cause a Capital Impairment or Liquidity Impairment (the “Auditors’ Determination”). (iib) The Auditors’ Determination shall be prepared, taking into account the adjustments set out in Section 11.12(d17.16.2 (Net Assets) 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(h17.6.6 (No waiver) below, such Auditors’ Determination shall be binding on the relevant German Guarantor, Guarantor and the Administrative Agent. (iiic) 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(e17.16.3 (Mitigation) above shall continue to exist.

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 Trustee 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(d2.4(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(h2.4(h) below, such Auditors’ Determination shall be binding on the relevant German Guarantor, Guarantor and the Administrative AgentTrustee. (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(e2.4(e) above shall continue to exist.

Auditors’ Determination. (i) 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 Initial Purchasers have 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(d23(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(h23(h) below, such Auditors’ Determination shall be binding on the relevant German Guarantor, Guarantor and the Administrative AgentInitial Purchasers. (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(e23(e) above shall continue to exist.

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)Cross-Liability Obligations, the German Guarantor shall 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 Cross-Liability Obligation 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 German Guaranty Cross-Liability Obligation would cause a Capital Impairment or Liquidity 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 Section 2.07 (e) above would not prevent such Capital Impairment). (ii) The Auditors’ Determination shall be prepared, taking into account the adjustments set out in Section 11.12(d2.07 (d) 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 unconsolidated 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) below2.07 (h), such Auditors’ Determination shall be binding on the relevant German Guarantor, Guarantor and the Administrative AgentAgent 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 Section 11.12(e2.07 (d) above shall continue to exist.

Auditors’ Determination. (ia) 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)Guarantee, the German Guarantor shall may (at its own cost and expense) arrange for the preparation of a balance sheet by a firm of recognized recognised auditors (the “Auditors”) in order to have such Auditors determine whether (and if so, to what extent) any payment under this German Guaranty Guarantee would cause a Capital Impairment or Liquidity Impairment (the “Auditors’ Determination”). (iib) The Auditors’ Determination shall be prepared, taking into account the adjustments set out in Section 11.12(dClause III.2 (Net Assets) 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(hClause III.6 (No waiver) below, such Auditors’ Determination shall be binding on the relevant German Guarantor, Guarantor and the Administrative Collateral Agent. (iiic) 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(eClause III.3 (Mitigation) above shall continue to exist.

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(d11.10(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(h11.10(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(e11.10(e) above shall continue to exist.

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 Trustee 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(d2.03(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(hSECTION 2.03 (h) below, such Auditors’ Determination shall be binding on the relevant German Guarantor, Guarantor and the Administrative AgentTrustee. (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(e2.03(e) above shall continue to exist.