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 (or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner’s assets) that are equivalent to those items listed in section 266 subsection (2) A, B, C and D HGB less the relevant German Guarantor’s (or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner’s) liabilities (the calculation of which shall only take into account the items listed in accordance with section 266 subsection (3) B, C, D and 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: (a) 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 Guarantor or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner; (b) 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 the Credit 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 of such German Guarantor or its general partner and are still outstanding at the time when payment under the Guaranty is demanded, shall be disregarded; and (c) 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 breach of the 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 (or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner’s assets) that are equivalent to those items listed in section 266 subsection sub-section (2) A, B, B and C and D HGB of the German Commercial Code (Handelsgesetzbuch) less the relevant German Guarantor’s (or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner’s) liabilities (the calculation of which shall only take into account the items listed in accordance with section 266 subsection (3) B, C, C and D and E HGB and any amounts not available for distribution according to section 268 subsection of the German Commercial Code (8) HGBHandelsgesetzbuch)). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (ai) 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 execution of this Guaranty Agreement without the prior written consent of the Administrative Security Agent or other than (such consent to be given provided that such increase is required as expressly permitted by the Credit Documents a mandatory provision of applicable law) shall be deducted from the amount of the registered share capital of the relevant German Guarantor or, or if the relevant German Guarantor is a GmbH & Co. KG, its general partner;; and (bii) 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 which qualifies as being subordinated within the meaning of section 39 (2) InsO; 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 the Credit this 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 are still outstanding at the time when payment under the Guaranty German Guarantee is demanded, demanded shall be disregarded; and (ciii) 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 breach of the Credit 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 (ordetermined in accordance with applicable law and court decisions and, if there is no positive going concern (positive Fortführungsprognose) based on the relevant German Guarantor is a GmbH & Co. KG, its general partner’s assetslower of book value (Buchwert) that are equivalent and liquidation value (Liquidationswert) (consisting of all assets which correspond to those items listed in section 266 subsection (2) A, B, B and C and D HGB of the German Commercial Code (“HGB”)) less the relevant German Guarantor’s (or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner’s) liabilities (the calculation consisting of all liabilities and liability reserves which shall only take into account the correspond to those items listed in accordance with section 266 subsection (3) B, C, C and D and E HGB and any amounts not available for distribution according to section 268 subsection (8) of the HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (ai) 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 Guarantor or, if the relevant German Guarantor is a GmbH & Co. KG, its general partnerGuarantor; (bii) 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 the Credit Agreement this German Guaranty 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 are still outstanding have not yet been repaid at the time when payment under the German Guaranty is demanded, shall be disregardeddisregarded 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 (ciii) 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 in gross-negligent or its general partner in willful breach of the Credit 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 (ordetermined in accordance with applicable law and court decisions and, if there is no positive going concern (positive Fortführungsprognose) based on the relevant German Guarantor is a GmbH & Co. KG, its general partner’s assetslower of book value (Buchwert) that are equivalent and liquidation value (Liquidationswert) (consisting of all assets which correspond to those items listed in section 266 subsection (2) A, B, B and C and D HGB of the German Commercial Code (“HGB”)) less the relevant German Guarantor’s (or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner’s) liabilities (the calculation consisting of all liabilities and liability reserves which shall only take into account the correspond to those items listed in accordance with section 266 subsection (3) B, C, C and D and E HGB and any amounts not available for distribution according to section 268 subsection (8) of the HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (a) i. the amount of any increase in the registered share capital of the relevant German Guarantor (or, if which became effective after the relevant German Guarantor is a GmbH & Co. KG, the registered share capital of its general partner) date hereof and which was carried out after the relevant German Guarantor became a party to this Guaranty resolved and implemented without the prior written consent of the Administrative Agent Initial Purchasers or other than as expressly permitted by under the Credit Documents restrictive covenants in the Indenture shall be deducted from the amount of the registered share capital of the relevant German Guarantor or, if Guarantor; ii. any payments received by the relevant German Guarantor is a GmbH & Co. KG, its general partner; (b) any debt outstanding that has been subordinated by mutual agreement between from the relevant German Guarantor or, if Companies in connection with 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 the Credit Agreement Notes 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 subsidiary of such German Guarantor or its general partner and are still outstanding which have not yet been repaid at the time when payment under the German Guaranty is demanded, shall be disregardeddisregarded for as long as no demand has been made in relation to such amounts lent or otherwise (directly or indirectly) passed on as set out above under the Guarantee by the relevant German Guarantor in accordance with Section 23(b) above; and (c) iii. loans or other contractual liabilities or indebtedness incurred by the relevant German Guarantor or, if the relevant German Guarantor is a GmbH & Co. KG, the relevant German Guarantor in gross-negligent or its general partner in willful breach of the Credit Documents provisions of this Agreement and the Indenture 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 (ordetermined in accordance with applicable law and court decisions and, if there is no positive going concern (positive Fortführungsprognose) based on the relevant German Guarantor is a GmbH & Co. KG, its general partner’s assetslower of book value (Buchwert) that are equivalent and liquidation value (Liquidationswert) (consisting of all assets which correspond to those items listed in section 266 subsection (2) A, B, B and C and D HGB of the German Commercial Code (“HGB”)) less the relevant German Guarantor’s (or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner’s) liabilities (the calculation consisting of all liabilities and liability reserves which shall only take into account the correspond to those items listed in accordance with section 266 subsection (3) B, C, C and D and E HGB and any amounts not available for distribution according to section 268 subsection (8) of the HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (ai) 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 Trustee shall be deducted from the amount of the registered share capital of the relevant German Guarantor or, if the relevant German Guarantor is a GmbH & Co. KG, its general partnerGuarantor; (bii) 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 received by any Borrower Issuer under the Credit Agreement issuance of the Notes 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 are still outstanding have not yet been repaid at the time when payment under the German Guaranty is demanded, shall be disregardeddisregarded 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 2.03(b) above; and (ciii) 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 in gross-negligent or its general partner in willful breach of Notes Documents or the 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 (ordetermined in accordance with applicable law and court decisions and, if there is no positive going concern (positive Fortführungsprognose) based on the relevant German Guarantor is a GmbH & Co. KG, its general partner’s assetslower of book value (Buchwert) that are equivalent and liquidation value (Liquidationswert) (consisting of all assets which correspond to those items listed in section 266 subsection (2) A, B, B and C and D HGB of the German Commercial Code (“HGB”)) less the relevant German Guarantor’s (or, if the relevant German Guarantor is a GmbH & Co. KG, its general partner’s) liabilities (the calculation consisting of all liabilities and liability reserves which shall only take into account the correspond to those items listed in accordance with section 266 subsection (3) B, C, C and D and E HGB and any amounts not available for distribution according to section 268 subsection (8) of the HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows: (ai) 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 Trustee shall be deducted from the amount of the registered share capital of the relevant German Guarantor or, if the relevant German Guarantor is a GmbH & Co. KG, its general partnerGuarantor; (bii) 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 received by any Borrower Issuer under the Credit Agreement issuance of the Notes 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 are still outstanding have not yet been repaid at the time when payment under the German Guaranty is demanded, shall be disregardeddisregarded 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 2.03(b) above; and (ciii) 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 in gross-negligent or its general partner in willful breach of Note Documents or the Credit Documents shall not be taken into account as liabilities.