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 Company 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 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 which was carried out after the relevant German Guarantor became a party to this Agreement without the prior written consent of the Collateral Agent shall be deducted from the amount of the registered share capital of the relevant German Guarantor; b) any funds borrowed by any Borrower under this Agreement 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 Guarantee is demanded, shall be disregarded; c) loans or other contractual liabilities incurred by the relevant German Guarantor in 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, 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 Company 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 follows: a(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 Agreement Guaranty without the prior written consent of the Collateral Agent Trustee shall be deducted from the amount of the registered share capital of the relevant German Guarantor; b(ii) any funds borrowed received by any Borrower Issuer under this Agreement 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 Guarantee German Guaranty is demanded, shall be disregarded;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 2.4(b) above; and c(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 Company Commercial Code (Handelsgesetzbuch) “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 HGB). For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows follows: (a) 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 Agreement without the prior written consent of the Collateral Administrative Agent shall be deducted from the amount of the registered share capital of the relevant German Guarantor; (b) any funds borrowed by any Borrower under this Agreement 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 Guarantee is demanded, shall be disregarded; c) loans or other contractual liabilities incurred by the relevant German Guarantor in 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, 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 Company 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 follows: a(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 Agreement Guaranty without the prior written consent of the Collateral Administrative Agent shall be deducted from the amount of the registered share capital of the relevant German Guarantor; b(ii) any funds borrowed by any Borrower under this Agreement 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 Guarantee German Guaranty is demanded, shall be disregarded;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 c(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, 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 Company 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 follows: a(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 Agreement Guaranty without the prior written consent of the Collateral Agent Trustee shall be deducted from the amount of the registered share capital of the relevant German Guarantor; b(ii) any funds borrowed received by any Borrower Issuer under this Agreement 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 Guarantee German Guaranty is demanded, shall be disregarded;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 2.03(b) above; and c(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 Company 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 follows: a) 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 Agreement date hereof and which was resolved and implemented without the prior written consent of the Collateral 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; b) ii. any funds borrowed payments received by any Borrower under this Agreement the German 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 Guarantee German Guaranty is demanded, shall be disregarded;disregarded 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 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.

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 Company 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 follows: a(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 Agreement Guaranty without the prior written consent of the Collateral Agent Trustee shall be deducted from the amount of the registered share capital of the relevant German Guarantor; b(ii) any funds borrowed received by any Borrower Issuer under this Agreement 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 Guarantee German Guaranty is demanded, shall be disregarded;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 2.03(b) above; and c(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.