Common use of Net Assets Clause in Contracts

Net Assets. The calculation of net assets (the “Net Assets”) shall only take into account the sum of the values of the assets of the relevant German Guarantor determined in accordance with applicable law and court decisions and, if there is no positive going concern (positive Fortführungsprognose) based on the lower of book value (Buchwert) and liquidation value (Liquidationswert) (consisting of all assets which correspond to those items listed in section 266 subsection (2) A, B and C of the German Commercial Code (“HGB”)) less the relevant German Guarantor’s liabilities (consisting of all liabilities and liability reserves which correspond to those items listed in accordance with section 266 subsection (3) B, C and D of the HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (i) the amount of any increase in the registered share capital of the relevant German Guarantor which was carried out after the relevant German Guarantor became a party to this Guaranty without the prior written consent of the Administrative Agent shall be deducted from the amount of the registered share capital of the relevant German Guarantor; (ii) any funds borrowed by any Borrower under this German Guaranty which have been or are on-lent or otherwise passed on to the relevant German Guarantor or to any Subsidiary of such German Guarantor and have not yet been repaid at the time when payment under the German Guaranty is demanded, shall be disregarded for as long as no demand has been made in relation to such amounts on-lent or otherwise (directly or indirectly) passed on as set out above under the Guarantee by the relevant German Guarantor in accordance with Section 11.12(b) above; and (iii) loans or other contractual liabilities incurred by the relevant German Guarantor in gross-negligent or willful breach of the Transaction Documents shall not be taken into account as liabilities.

Net Assets. The calculation of net assets (the “Net Assets”) shall only take into account the sum of the values of the assets of the relevant German Guarantor determined in accordance with applicable law and court decisions and(or, if there the relevant German Guarantor is no positive going concern (positive Fortführungsprognosea GmbH & Co. KG, its general partner’s assets) based on the lower of book value (Buchwert) and liquidation value (Liquidationswert) (consisting of all assets which correspond that are equivalent to those items listed in section 266 subsection (2) A, B B, C and C of the German Commercial Code (“HGB”)) D HGB less the relevant German Guarantor’s (or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner’s) liabilities (consisting the calculation of all liabilities and liability reserves which correspond to those shall only take into account the items listed in accordance with section 266 subsection (3) B, C C, D and D of the E HGB and any amounts not available for distribution according to section 268 subsection (8) HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (ia) the amount of any increase in the registered share capital of the relevant German Guarantor (or, if the relevant German Guarantor is a GmbH & Co. KG, the registered share capital of its general partner) which was carried out after the relevant German Guarantor became a party to this Guaranty without the prior written consent of the Administrative Agent or other than as expressly permitted by the Credit Documents shall be deducted from the amount of the registered share capital of the relevant German GuarantorGuarantor or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner; (iib) any debt outstanding that has been subordinated by mutual agreement between the relevant German Guarantor or, if the relevant German Guarantor is a GmbH & Co. KG, the relevant German Guarantor or its general partner and the creditor of such debt or qualifies as being subordinated within the meaning of section 39 (2) InsO; and funds borrowed by any Borrower under this German Guaranty the Credit Agreement which have been or are on-lent or otherwise otherwise, passed on to the relevant German Guarantor or its general partner or to any Subsidiary of such German Guarantor or its general partner and have not yet been repaid are still outstanding at the time when payment under the German Guaranty is demanded, shall be disregarded for as long as no demand has been made in relation to such amounts on-lent or otherwise (directly or indirectly) passed on as set out above under the Guarantee by the relevant German Guarantor in accordance with Section 11.12(b) abovedisregarded; and (iiic) loans or other contractual liabilities incurred by the relevant German Guarantor or, if the relevant German Guarantor is a GmbH & Co. KG, the relevant German Guarantor or its general partner in gross-negligent or willful breach of the Transaction Credit Documents shall not be taken into account as liabilities.

Net Assets. The calculation of net assets (the “Net Assets”) shall only take into account the sum of the values of the assets of the relevant German Guarantor determined in accordance with applicable law and court decisions and(or, if there the German Guarantor is no positive going concern (positive Fortführungsprognosea GmbH & Co. KG, its general partner’s assets) based on the lower of book value (Buchwert) and liquidation value (Liquidationswert) (consisting of all assets which correspond that are equivalent to those items listed in section 266 subsection sub-section (2) A, B and C of the German Commercial Code (“HGB”)Handelsgesetzbuch) less the relevant German Guarantor’s (or, if the German Guarantor is a GmbH & Co. KG, its general partner’s) liabilities (consisting the calculation of all liabilities and liability reserves which correspond to those shall only take into account the items listed in accordance with section 266 subsection (3) B, C and D of the HGBGerman Commercial Code (Handelsgesetzbuch)). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (i) the amount of any increase in the registered share capital of the relevant German Guarantor (or, if the German Guarantor is a GmbH & Co. KG, the registered share capital of its general partner) which was carried out after the relevant German Guarantor became a party to execution of this Guaranty Agreement without the prior written consent of the Administrative Security Agent (such consent to be given provided that such increase is required as a mandatory provision of applicable law) shall be deducted from the amount of the registered share capital of the relevant German Guarantor;Guarantor or if the Guarantor is a GmbH & Co. KG, its general partner; and (ii) any debt outstanding that has been subordinated by mutual agreement between the German Guarantor or, if the German Guarantor is a GmbH & Co. KG, the German Guarantor or its general partner and the creditor of such debt which qualifies as being subordinated within the meaning of section 39 (2) of the German Insolvency Code or qualifies under section 32a of the German Limited Liability Companies Act or section 172a of the German Commercial Code and funds borrowed by any Borrower under this German Guaranty Agreement which have been or are on-lent or otherwise passed on to the relevant German Guarantor or its general partner or to any Subsidiary subsidiary of such German Guarantor or its general partner and have not yet been repaid are still outstanding at the time when payment under the German Guaranty Guarantee is demanded, demanded shall be disregarded for as long as no demand has been made in relation to such amounts on-lent or otherwise (directly or indirectly) passed on as set out above under the Guarantee by the relevant German Guarantor in accordance with Section 11.12(b) abovedisregarded; and (iii) loans or other contractual liabilities incurred by the relevant German Guarantor or, if the German Guarantor is a GmbH & Co. KG, the German Guarantor or its general partner in gross-negligent or willful breach of the Transaction Finance Documents shall not be taken into account as liabilities.

Net Assets. The calculation of net assets (the “Net Assets”) shall only take into account the sum of the values of the assets of the relevant German Guarantor determined in accordance with applicable law and court decisions and, if there is no positive going concern (positive Fortführungsprognose) based on the lower of book value (Buchwert) and liquidation value (Liquidationswert) (consisting of all assets which correspond to those items listed in section 266 subsection (2) A, B and C of the German Commercial Code (“HGB”)) less the relevant German Guarantor’s liabilities (consisting of all liabilities and liability reserves which correspond to those items listed in accordance with section 266 subsection (3) B, C and D of the HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (i) the amount of any increase in the registered share capital of the relevant German Guarantor which was carried out after the relevant German Guarantor became a party to this Guaranty without the prior written consent of the Administrative Agent Trustee shall be deducted from the amount of the registered share capital of the relevant German Guarantor; (ii) any funds borrowed received by any Borrower Issuer under this German Guaranty the issuance of the Notes which have been or are on-lent or otherwise passed on to the relevant German Guarantor or to any Subsidiary of such German Guarantor and have not yet been repaid at the time when payment under the German Guaranty is demanded, shall be disregarded for as long as no demand has been made in relation to such amounts on-lent or otherwise (directly or indirectly) passed on as set out above under the Guarantee by the relevant German Guarantor in accordance with Section 11.12(b2.03(b) above; and (iii) loans or other contractual liabilities incurred by the relevant German Guarantor in gross-negligent or willful breach of Note Documents or the Transaction Documents shall not be taken into account as liabilities.

Net Assets. The calculation of net assets (the “Net Assets”) shall only take into account the sum of the values of the assets of the relevant German Guarantor determined in accordance with applicable law and court decisions and, if there is no positive going concern (positive Fortführungsprognose) based on the lower of book value (Buchwert) and liquidation value (Liquidationswert) (consisting of all assets which correspond to those items listed in section 266 subsection (2) A, B and C of the German Commercial Code (“HGB”)) less the relevant German Guarantor’s liabilities (consisting of all liabilities and liability reserves which correspond to those items listed in accordance with section 266 subsection (3) B, C and D of the HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (i) the amount of any increase in the registered share capital of the relevant German Guarantor which was carried out after the relevant German Guarantor became a party to this Guaranty without the prior written consent of the Administrative Agent Trustee shall be deducted from the amount of the registered share capital of the relevant German Guarantor; (ii) any funds borrowed received by any Borrower Issuer under this German Guaranty the issuance of the Notes which have been or are on-lent or otherwise passed on to the relevant German Guarantor or to any Subsidiary of such German Guarantor and have not yet been repaid at the time when payment under the German Guaranty is demanded, shall be disregarded for as long as no demand has been made in relation to such amounts on-lent or otherwise (directly or indirectly) passed on as set out above under the Guarantee by the relevant German Guarantor in accordance with Section 11.12(b2.03(b) above; and (iii) loans or other contractual liabilities incurred by the relevant German Guarantor in gross-negligent or willful breach of Notes Documents or the Transaction Documents shall not be taken into account as liabilities.

Net Assets. The calculation of net assets (the “Net Assets”) shall only take into account the sum of the values of the assets of the relevant German Guarantor determined in accordance with applicable law and court decisions and, if there is no positive going concern (positive Fortführungsprognose) based on the lower of book value (Buchwert) and liquidation value (Liquidationswert) (consisting of all assets which correspond to those items listed in section 266 subsection (2) A, B and C of the German Commercial Code (“HGB”)) less the relevant German Guarantor’s liabilities (consisting of all liabilities and liability reserves which correspond to those items listed in accordance with section 266 subsection (3) B, C and D of the HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (i) i. the amount of any increase in the registered share capital of the relevant German Guarantor which was carried out became effective after the relevant German Guarantor became a party to this Guaranty date hereof and which was resolved and implemented without the prior written consent of the Administrative Agent Initial Purchasers or as permitted under the restrictive covenants in the Indenture shall be deducted from the amount of the registered share capital of the relevant German Guarantor; (ii) . any funds borrowed payments received by any Borrower under this the German Guaranty Guarantor from the Companies in connection with the Notes which have been or are on-lent or otherwise passed on to the relevant German Guarantor or to any Subsidiary subsidiary of such German Guarantor and which have not yet been repaid at the time when payment under the German Guaranty is demanded, shall be disregarded for as long as no demand has been made in relation to such amounts on-lent or otherwise (directly or indirectly) passed on as set out above under the Guarantee by the relevant German Guarantor in accordance with Section 11.12(b23(b) above; and (iii) . loans or other contractual liabilities or indebtedness incurred by the relevant German Guarantor in gross-negligent or willful breach of the Transaction Documents provisions of this Agreement and the Indenture shall not be taken into account as liabilities.