German Guarantee Limitations. (a) The right of the Secured Parties to enforce the Guaranteed Obligations of a German Guarantor existing in the form of a German limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) or a limited liability partnership with a limited liability company as partner (GmbH & Co. KG) under this Article X shall be limited if and to the extent that the Guaranteed Obligations secure any obligation of an affiliated company (verbundenes Unternehmen) within the meaning of section 15 German Stock Corporation Act (Aktiengesetz) (in each case other than any of such German Guarantor's direct or indirect subsidiaries) and the enforcement of such Guaranteed Obligations would cause: (i) such German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) net assets (Reinvermögen) determined in accordance with the provisions of the German Commercial Code (Handelsgesetzbuch) consistently applied by such German Guarantor (or in the case of a GmbH & Co. KG, its general partner) in preparing its unconsolidated balance sheets (Jahresabschluss) according to section 42 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung), sections 242, 264 German Commercial Code and in accordance with sections 30, 31 German Limited Liability Companies Act (as applicable at the time of enforcement)) (the "Net Assets") to be less than its registered share capital (Stammkapital) (Begründung einer Unterbilanz); or (ii) (if such German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets are already less than its registered share capital) the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets to be further reduced (Vertiefung einer Unterbilanz) (in each case a "Capital Impairment"). (b) For the purposes of the calculation of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets: (i) the amount of any increase of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) registered share capital that has been effected without the prior written consent of any Agent or is otherwise permitted under this Agreement and the other Loan Documents shall be deducted from the registered share capital; (ii) any obligations of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner) towards any of the Borrowers or any of their affiliates which are subordinated in accordance with section 39 para. 1 no. 5 German Insolvency Code (Insolvenzordnung), shall be disregarded; and (iii) loans and other liabilities incurred by the German Guarantor (or in the case of a GmbH & Co. KG, by its general partner) in violation of the provisions of this Agreement or any other Loan Document shall be disregarded. (c) The German Guarantor shall deliver to the Agent, within ten (10) Business Days after receipt from the Agent of a notice stating that the Agent intends to enforce the Guaranteed Obligations an up-to-date balance sheet of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner) together with a detailed calculation (satisfactory to the Agent) of the amount of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets taking into account the adjustments set forth in paragraph (b) above (the "Management Determination"). Any Agent shall be entitled to enforce the Guaranteed Obligations in an amount which would, in accordance with the Management Determination, not cause a Capital Impairment of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner). (d) Following the relevant Agent's receipt of the Management Determination, upon request by the relevant Agent, the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall deliver to the respective Agent within thirty (30) Business Days of request an up-to-date balance sheet of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's) drawn up by the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor together with a detailed calculation (satisfactory to the respective Agent) of the amount of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets taking into account the adjustments set forth in paragraph (b) above (the "Auditor's Determination"). Such balance sheet and Auditor's Determination shall be prepared in accordance with generally accepted accounting principles in Germany consistently applied. Each Agent shall be entitled to enforce the Guaranteed Obligations in an amount which would, in accordance with the Auditor's Determination, not cause a Capital Impairment of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's). (e) If as a result of the enforcement of the Guaranteed Obligations its Net Assets would be reduced below the amount of its registered share capital, the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall without undue delay (unverzüglich) bearing in mind the legitimate interests of the Secured Parties after its receipt of a written request by the respective Agent realise, to the extent legally permitted, any and all of its assets shown in the balance sheet with a book value (Buchwert) that is materially lower than the market value of such asset(s) and that are not required for the business of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's) (nicht betriebsnotwendig). After the realisation of such asset(s) the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall, within five (5) Business Days, notify the respective Agent of the amount of the proceeds from the sale and submit a statement with a new calculation of the amount of the Net Assets taking into account such proceeds. Such calculation shall, upon the relevant Agent's request, be confirmed by the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor within a period of twenty (20) Business Days following the request. (f) The restriction under paragraph (a) above shall not apply: (i) if the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has not complied with its obligations pursuant to paragraphs (c) through (e) above; (ii) when, at the time of enforcement of the Guaranteed Obligations, the restrictions under paragraph (a) above are, due to a change of the applicable laws, the interpretation thereof or otherwise, not required to protect the managing directors of the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) or of any of its direct or indirect shareholders from the risk of personal liability; (iii) if the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch); (iv) if and so long it is party to a domination and/or profit and loss pooling agreement (Beherrschungsvertrag und/oder Gewinnabführungsvertrag) or a chain of domination and/or profit and loss pooling agreements as a dominated or profit distributing entity with its shareholder or with any of its shareholder's affiliated companies within the meaning of section 15 German Stock Corporation Act whose obligations are secured (other than the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) subsidiaries) as dominating or profit receiving entity, on the date of the enforcement, provided that the Administrative Agent provides evidence that the mere existence of such domination and/or profit and loss pooling agreement on such date is sufficient to suspend the restrictions imposed by sections 30, 31 German Limited Liability Companies Act; including, in particular, that it is not required for such suspension that the relevant German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch) against any such dominating or profit receiving entity; or (v) to the extent that the Guaranteed Obligations secure any Loans that are on-lent by the relevant Borrower to the German Guarantor (or in the case of a GmbH & Co. KG, its general partner)(or any of its subsidiaries) and have not yet been repaid by the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) (or its subsidiaries) prior to the time of the intended enforcement. (g) No limitation of enforcement of the Guaranteed Obligations in accordance with the above limitations will prejudice the rights of any Agent to continue enforcing the Guaranteed Obligations (subject always to the operation of the limitation set out above at the time of such enforcement) until full satisfaction of the Secured Obligations. (h) The maximum amount payable by a German Guarantor existing in the form of a German limited liability company (GmbH) or a limited liability partnership with a limited liability company as partner (GmbH & Co. KG) under this Article X shall be limited to the extent such German Guarantor (or in the case of a GmbH & Co. KG, its general partner), as a consequence of the payment, would become unable to pay its other debts as they due (zahlungsunfähig) within the meaning of section 64 sentence 3 German Limited Liability Companies Act (the "Liquidity Impairment") and this payment were to result in personal liability of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) managing directors (Geschäftsführer) pursuant to section 64 sentence 3 German Limited Liability Companies Act, it being understood that as of the date of this Agreement the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) managing directors do not foresee any enforcement under this Article X. In respect of such Liquidity Impairment, the following shall apply: (i) for the purpose of establishing whether a Liquidity Impairment would occur, the following payments and claims shall be disregarded, unless otherwise agreed with the Administrative Agent:
Appears in 1 contract
German Guarantee Limitations. (a) The right of the Secured Parties to enforce the Guaranteed Obligations of a German Guarantor existing in the form of a German limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) or a limited liability partnership with a limited liability company as partner (GmbH & Co. KG) under this Article X shall be limited if and to To the extent that the Guaranteed Obligations secure a guarantee created under this Agreement or any other obligation of an affiliated company which qualifies as a “payment” (verbundenes UnternehmenZahlung) within the meaning of section 15 Sections 30, 31 of the German Stock Corporation Limited Liabilities Company Act (AktiengesetzGmbHG) (the “GmbH-Act”) (the “Guarantee”) is granted or incurred by a Guarantor incorporated in Germany as a limited liability company (GmbH) (each case other than any of such a “German Guarantor's ” and collectively, “German Guarantors”), currently CB&I Xxxxxx GmbH and CB&I Novolen Technology GmbH, and the Guarantee of the German Guarantor guarantees amounts which are owed by any current or future direct or indirect subsidiariesshareholders of the German Guarantor or Subsidiaries of such shareholders (with the exception of Subsidiaries which are also Subsidiaries of the German Guarantor), the Guarantee of the German Guarantor shall be subject to certain limitations as set out in the following paragraphs of this Section. In relation to any other amounts guaranteed, the Guarantee of the German Guarantor remains unlimited.
(b) Subject to paragraphs (e) and (f) below, the holders agree that the enforcement of such Guaranteed Obligations would cause:
the Guarantee shall be limited in relation to any German Guarantor, provided that the German Guarantor is able to demonstrate as determined pursuant to the procedures set forth in paragraph (e) below that by enforcing the Guarantee (i) such its (or, if a parent entity is a German Guarantor's (or in the case of a GmbH & Co. KG, its general partner'ssuch parent entity’s) net assets (Reinvermögen) determined in accordance with the provisions of the German Commercial Code (HandelsgesetzbuchHGB) consistently applied by such German Guarantor (or in the case of a GmbH & Co. KG, its general partner) in preparing its unconsolidated balance sheets (Jahresabschluss) according to section 42 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung), sections 242, 264 German Commercial Code and in accordance with sections 30, 31 German Limited Liability Companies Act (as applicable at the time of enforcement“HGB”)) (such net assets of any German Guarantor or its parent entity, the "“Net Assets"”) would be caused to be less than fall below its registered share capital (Stammkapital) (Begründung einer Unterbilanz); or
or (ii) (if such German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets are were already less lower than its registered share capital) the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets such enforcement would cause such amount to be further reduced (Vertiefung einer der Unterbilanz) if and to the extent such limitation is necessary to avoid a violation of Section 30 or 31 GmbH-Act (in each case a "Capital Impairment"“Limitation on Enforcement” or “Limitation Event”).
(c) Paragraph (b) above shall not apply with respect to (i) loans or other financial accommodation made available to, or bank guarantees issued for the benefit of creditors of, such German Guarantor or a Subsidiary of such German Guarantor by a holder under this Agreement and (ii) amounts due and payable under the Guarantee which relate to funds made available under this Agreement which have been on-lent to that German Guarantor or any of its Subsidiaries, in each case to the extent that any such on-lending is outstanding at the time of the enforcement of the Guarantee. For the avoidance of doubt, nothing in this paragraph (c) shall have the effect that such on-lent amounts may be enforced multiple times (no double dip).
(d) For the purposes of the calculation of Net Assets pursuant to paragraph (b) above, the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assetsfollowing balance sheet items shall be adjusted as follows:
(i) the The amount of any increase of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) registered stated share capital that has been effected (Stammkapital) of the German Guarantor registered after the Tenth Amendment Effective Date without the prior written consent of any Agent or is otherwise permitted under this Agreement and the other Loan Documents holders shall be deducted from the registered relevant stated share capital;
(ii) any obligations of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner) towards any of the Borrowers or any of their affiliates which are subordinated in accordance with section 39 para. 1 no. 5 German Insolvency Code (Insolvenzordnung), shall be disregarded; and
(iii) loans and other liabilities incurred by the German Guarantor (or in the case of a GmbH & Co. KG, by its general partner) in violation of the provisions of this Agreement or any other Loan Document shall be disregarded. The cash pool agreement facilitated by Bank Mendes Xxxx to which the German Guarantors are parties does not violate any loan provisions; and
(iii) the amount of non-distributable assets according to paragraph 8 of Section 268 HGB shall not be included in the calculation of Net Assets.
(ce) The Limitation on Enforcement shall only apply if and to the extent that:
(i) if following notification by the Required Holders of claims raised under the Guarantee, the German Guarantor shall deliver provides evidence reasonably satisfactory to the AgentRequired Holders, including in particular un-audited interim financial statements, within ten fifteen (1015) Business Days after receipt from (the Agent “Management Determination”) stating:
(A) the extent to which the enforcement of a notice stating that an unlimited Guarantee would cause the Agent intends to enforce the Guaranteed Obligations an up-to-date balance sheet Net Assets of the such German Guarantor (or in to fall below its stated share capital or, if the case of a GmbH & Co. KG, of its general partner) together with a detailed calculation (satisfactory to the Agent) of the amount of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets were already less than its stated share capital (Stammkapital), would cause such amount to be further reduced (in each case taking into account the adjustments set forth out in paragraph (bd) above above) and thereby lead to a violation of the capital maintenance requirement as set out in Sections 30, 31 GmbH-Act;
(B) up to which amount the enforcement of the Guarantee would comply with the capital requirements as set out in Section 30, 31 GmbH-Act (the "Management Determination"“Guarantee Enforcement Amount”). Any Agent shall ; and
(C) where the Guarantee is proposed to be entitled enforced against a German Guarantor that is a subsidiary of another German Guarantor, the extent to enforce which the Guaranteed Obligations in an amount which would, in accordance with unlimited enforcement of the Management Determination, not Guarantee against the subsidiary German Guarantor would cause a Capital Impairment of Limitation Event with respect to the parent German Guarantor (or in the case of a GmbH & Co. KG, of its general partner)Guarantor.
(dii) Following If the relevant Agent's Required Holders have contested the Management Determination (which they may do within fifteen (15) Business Days of their receipt of the Management Determination) by claiming that (a) no Limitation Event is to apply or (b) the Guarantee Enforcement Amount could be higher without breaching the capital maintenance requirement as set out in Sections 30, upon request by 31 of the relevant AgentGmbH-Act, the German Guarantor shall have forty-five (or in the case of a GmbH & Co. KG, its general partner) shall deliver to the respective Agent within thirty (3045) Business Days of request from the date the Required Holders have contested the Management Determination to provide to the holders an up-to-date balance sheet of expert opinion (the “Expert’s Determination”) by one or more legal and/or audit experts appointed by the German Guarantor (or in at its own cost and expense), confirming the case of a GmbH & Co. KG, of its general partner's) drawn amount up by to which the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor together with a detailed calculation (satisfactory to the respective Agent) enforcement of the amount of Guarantee would comply with the German Guarantor's capital maintenance requirements pursuant to Sections 30, 31 GmbH-Act (or in the each case of a GmbH & Co. KG, its general partner's) Net Assets taking into account the adjustments set forth out in paragraph (bd) above above).
(f) If the "Auditor's Required Holders disagree with the Expert’s Determination"). Such balance sheet and Auditor's Determination , the holders shall be prepared in accordance with generally accepted accounting principles in Germany consistently applied. Each Agent shall nevertheless be entitled to enforce the Guaranteed Obligations in an Guarantee up to the amount which wouldis undisputed between themselves and the German Guarantor. In relation to the amount which is disputed, the amounts determined in accordance with the Auditor's Determination, not cause a Capital Impairment of Expert’s Determination shall be (except for manifest error) binding for the German Guarantor (or in and the case of a GmbH & Co. KG, of its general partner's)holders.
(eg) If as a result of the German Guarantor claims that the enforcement of the Guaranteed Obligations its Net Assets Guarantee would be reduced below lead to the amount occurrence of its registered share capitala Limitation Event, then the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall without undue delay (unverzüglich) bearing in mind the legitimate interests of the Secured Parties after its receipt of a written request by the respective Agent realise, – to the extent legally permitted, lawful and commercially justifiable – realise at market value any and all of its assets that are shown in the its balance sheet with a book value (Buchwert) that which is materially (in the opinion of the Required Holders) significantly lower than the their market value of and to the extent that such asset(s) and that assets are not required necessary for the German Guarantor’s business of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's) (nicht betriebsnotwendig). After , to the realisation of such asset(s) extent necessary to satisfy the German Guarantor (or in amounts demanded under the case of a GmbH & Co. KG, its general partner) shall, within five (5) Business Days, notify the respective Agent of the amount of the proceeds from the sale and submit a statement with a new calculation of the amount of the Net Assets taking into account such proceeds. Such calculation shall, upon the relevant Agent's request, be confirmed by the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor within a period of twenty (20) Business Days following the requestGuarantee.
(fh) The restriction under paragraph (a) above shall Limitation on Enforcement does not apply:
(i) if affect the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has not complied with its obligations pursuant to paragraphs (c) through (e) above;
(ii) when, at the time of enforcement right of the Guaranteed Obligationsholders to claim again any outstanding amount at a later point in time, the restrictions under paragraph (a) above are, due to a change of the applicable laws, the interpretation thereof or otherwise, not required to protect the managing directors of the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) or of any of its direct or indirect shareholders from the risk of personal liability;
(iii) if the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch);
(iv) if and so long it is party to a domination and/or profit and loss pooling agreement (Beherrschungsvertrag und/oder Gewinnabführungsvertrag) or a chain of domination and/or profit and loss pooling agreements as a dominated or profit distributing entity with its shareholder or with any of its shareholder's affiliated companies within the meaning of section 15 German Stock Corporation Act whose obligations are secured (other than the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) subsidiaries) as dominating or profit receiving entity, on the date of the enforcement, provided that the Administrative Agent provides evidence that the mere existence of such domination and/or profit and loss pooling agreement on such date is sufficient to suspend the restrictions imposed by sections 30, 31 German Limited Liability Companies Act; including, in particular, that it is not required for such suspension that the relevant German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch) against any such dominating or profit receiving entity; or
(v) to the extent that the Guaranteed Obligations secure any Loans that are on-lent by the relevant Borrower to the German Guarantor (or in the case of a GmbH & Co. KG, its general partner)(or any of its subsidiaries) and have not yet been repaid by the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) (or its subsidiaries) prior to the time of the intended enforcement.
(g) No limitation of enforcement of the Guaranteed Obligations in accordance with the above limitations will prejudice the rights of any Agent to continue enforcing the Guaranteed Obligations (subject always to the operation of the limitation set out above at the time of such enforcement) until full satisfaction of the Secured Obligations.
(hi) The maximum amount payable This Section 24.11 (German Guarantor Limiting Language) shall apply mutatis mutandis (i) if the Guarantee is granted by a German Guarantor existing incorporated in Germany as a limited liability partnership (GmbH & Co. KG) in relation to the form of a German limited liability company as general partner (GmbHKomplementär) or a of such Guarantor and (ii) to any limited liability company incorporated (or limited partnership with a limited liability company established) in a jurisdiction other than Germany whose centre of main interest (as partner that term is used in Article 3(1) of The Council of the European Union Regulation No. 2015/848 on Insolvency Proceedings) is in Germany.
(GmbH & Co. KGj) In addition to the limitations on the enforcement of the Guarantee, it is hereby agreed that the German Guarantor shall have a defence against any claim, enforcement, or other request for performance or requirement to perform, whether such requirement is based on statute, contract or otherwise, to the extent such claim, enforcement or other performance would result in personal liability for the German Guarantor’s managing director(s) under this Article X then applicable law and any claims arising under the Guarantee shall be limited to the extent of such German Guarantor (or in the case of a GmbH & Co. KGdefence, its general partner), as a consequence of the payment, would become unable to pay its other debts as they due (zahlungsunfähig) within the meaning of section 64 sentence 3 German Limited Liability Companies Act (the "Liquidity Impairment") and this payment were to result in such that such personal liability would not be incurred. Nothing herein shall nor shall be deemed to prevent the holders from asserting, in a court of law or otherwise, that the claim, enforcement or other request for performance would not cause the German Guarantor's ’s managing director(s) to incur any liability, nor shall it prevent the German Guarantor from asserting, in a court of law or otherwise, to the contrary.
(k) Should new legislation or in the case jurisprudence of a GmbH & Co. KGhigher regional court (Oberlandesgericht) or the Federal Court of Justice (Bundesgerichtshof) – including, without limitation, based on proceedings initiated by the German Guarantor and/or its general partner's) managing directors (Geschäftsführer) pursuant or the Required Holders – being published, entered into and/or come into force after the Eighth Amendment Effective Date and should such law or court ruling lead to section 64 sentence 3 German Limited Liability Companies Act, it being understood that as of the date of this Agreement the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) managing directors do not foresee any enforcement under this Article X. In respect of such Liquidity Impairment, the following shall applydifferent legal and/or factual assessment:
(i) of the granting of the Guarantee by the German Guarantor, the holders shall, upon the German Guarantor’s managing directors’ (Geschäftsführer) request, enter into good faith negotiations on possible amendments to this Section 24.11 (German Guarantor Limiting Language) to the extent necessary to avoid the managing directors’ (Geschäftsführer) personal liability resulting from the granting of the Guarantee (taking into account the initial intention of the limitations set out in this Section 24.11 (German Guarantor Limiting Language) and, including but not limited to, amending reference points for the purpose assessment whether or not a violation of establishing whether a Liquidity Impairment would occur§§ 30, 31 GmbHG has occurred); or
(ii) of the enforcement of the Guarantee so that the limitations in this Section 24.11 (German Guarantor Limiting Language) are, are not, or are only partially, required to protect the managing directors (Geschäftsführer) of the German Guarantor from the risk of personal liability arising from the enforcement of the Guarantee, the following payments German Guarantor shall, upon the Required Holders’ request, enter into good faith negotiations on possible amendments to this Section 24.11 (German Guarantor Limiting Language) to the extent such provisions are, are not, or are only partially, required anymore to protect the managing directors (Geschäftsführer) of the German Guarantor from the risk of personal liability arising from the enforcement of the Guarantee.
(l) Notwithstanding anything to the contrary in this Agreement, this Section 24.11 (German Guarantor Limiting Language) and claims any rights or obligations arising out of it shall be disregardedgoverned by, unless otherwise agreed with the Administrative Agent:and construed in accordance with, German law.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
German Guarantee Limitations. (a) The right of the Secured Parties to enforce the Guaranteed Obligations of a German Guarantor existing in the form of a German limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) or a limited liability partnership with a limited liability company as partner (GmbH & Co. KG) under this Article X shall be limited if and to To the extent that the Guaranteed Obligations secure a guarantee created under this Agreement or any other obligation of an affiliated company which qualifies as a “payment” (verbundenes UnternehmenZahlung) within the meaning of section 15 Sections 30, 31 of the German Stock Corporation Limited Liabilities Company Act (AktiengesetzGmbHG) (the “GmbH-Act”) (the “Guarantee”) is granted or incurred by a Guarantor incorporated in Germany as a limited liability company (GmbH) (each case other than any of such a “German Guarantor's ” and collectively, “German Guarantors”), currently CB&I Xxxxxx GmbH and CB&I Novolen Technology GmbH, and the Guarantee of the German Guarantor guarantees amounts which are owed by any current or future direct or indirect subsidiariesshareholders of the German Guarantor or Subsidiaries of such shareholders (with the exception of Subsidiaries which are also Subsidiaries of the German Guarantor), the Guarantee of the German Guarantor shall be subject to certain limitations as set out in the following paragraphs of this Section. In relation to any other amounts guaranteed, the Guarantee of the German Guarantor remains unlimited.
(b) Subject to paragraphs (e) and (f) below, the holders agree that the enforcement of such Guaranteed Obligations would cause:
the Guarantee shall be limited in relation to any German Guarantor, provided that the German Guarantor is able to demonstrate as determined pursuant to the procedures set forth in paragraph (e) below that by enforcing the Guarantee (i) such its (or, if a parent entity is a German Guarantor's (or in the case of a GmbH & Co. KG, its general partner'ssuch parent entity’s) net assets (Reinvermögen) determined in accordance with the provisions of the German Commercial Code (HandelsgesetzbuchHGB) consistently applied by such German Guarantor (or in the case of a GmbH & Co. KG, its general partner) in preparing its unconsolidated balance sheets (Jahresabschluss) according to section 42 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung), sections 242, 264 German Commercial Code and in accordance with sections 30, 31 German Limited Liability Companies Act (as applicable at the time of enforcement“HGB”)) (such net assets of any German Guarantor or its parent entity, the "“Net Assets"”) would be caused to be less than fall below its registered share capital (Stammkapital) (Begründung einer Unterbilanz); or
or (ii) (if such German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets are were already less lower than its registered share capital) the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets such enforcement would cause such amount to be further reduced (Vertiefung einer der Unterbilanz) if and to the extent such limitation is necessary to avoid a violation of Section 30 or 31 GmbH-Act (in each case a "Capital Impairment"“Limitation on Enforcement” or “Limitation Event”).
(c) Paragraph (b) above shall not apply with respect to (i) loans or other financial accommodation made available to, or bank guarantees issued for the benefit of creditors of, such German Guarantor or a Subsidiary of such German Guarantor by a holder under this Agreement and (ii) amounts due and payable under the Guarantee which relate to funds made available under this Agreement which have been on-lent to that German Guarantor or any of its Subsidiaries, in each case to the extent that any such on-lending is outstanding at the time of the enforcement of the Guarantee. For the avoidance of doubt, nothing in this paragraph (c) shall have the effect that such on-lent amounts may be enforced multiple times (no double dip).
(d) For the purposes of the calculation of Net Assets pursuant to paragraph (b) above, the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assetsfollowing balance sheet items shall be adjusted as follows:
(i) the The amount of any increase of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) registered stated share capital that has been effected (Stammkapital) of the German Guarantor registered after the Tenth Amendment Effective Date without the prior written consent of any Agent or is otherwise permitted under this Agreement and the other Loan Documents holders shall be deducted from the registered relevant stated share capital;
(ii) any obligations of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner) towards any of the Borrowers or any of their affiliates which are subordinated in accordance with section 39 para. 1 no. 5 German Insolvency Code (Insolvenzordnung), shall be disregarded; and
(iii) loans and other liabilities incurred by the German Guarantor (or in the case of a GmbH & Co. KG, by its general partner) in violation of the provisions of this Agreement or any other Loan Document shall be disregarded. The cash pool agreement facilitated by Bank Mendes Xxxx to which the German Guarantors are parties does not violate any loan provisions; and
(iii) the amount of non-distributable assets according to paragraph 8 of Section 268 HGB shall not be included in the calculation of Net Assets.
(ce) The Limitation on Enforcement shall only apply if and to the extent that:
(i) if following notification by the Required Holders of claims raised under the Guarantee, the German Guarantor shall deliver provides evidence reasonably satisfactory to the AgentRequired Holders, including in particular un-audited interim financial statements, within ten fifteen (1015) Business Days after receipt from (the Agent “Management Determination”) stating:
(A) the extent to which the enforcement of a notice stating that an unlimited Guarantee would cause the Agent intends to enforce the Guaranteed Obligations an up-to-date balance sheet Net Assets of the such German Guarantor (or in to fall below its stated share capital or, if the case of a GmbH & Co. KG, of its general partner) together with a detailed calculation (satisfactory to the Agent) of the amount of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets were already less than its stated share capital (Stammkapital), would cause such amount to be further reduced (in each case taking into account the adjustments set forth out in paragraph (bd) above above) and thereby lead to a violation of the capital maintenance requirement as set out in Sections 30, 31 GmbH-Act;
(B) up to which amount the enforcement of the Guarantee would comply with the capital requirements as set out in Section 30, 31 GmbH-Act (the "Management Determination"“Guarantee Enforcement Amount”). Any Agent shall ; and
(C) where the Guarantee is proposed to be entitled enforced against a German Guarantor that is a subsidiary of another German Guarantor, the extent to enforce which the Guaranteed Obligations in an amount which would, in accordance with unlimited enforcement of the Management Determination, not Guarantee against the subsidiary German Guarantor would cause a Capital Impairment of Limitation Event with respect to the parent German Guarantor (or in the case of a GmbH & Co. KG, of its general partner)Guarantor.
(dii) Following If the relevant Agent's Required Holders have contested the Management Determination (which they may do within fifteen (15) Business Days of their receipt of the Management Determination) by claiming that (a) no Limitation Event is to apply or (b) the Guarantee Enforcement Amount could be higher without breaching the capital maintenance requirement as set out in Sections 30, upon request by 31 of the relevant AgentGmbH-Act, the German Guarantor shall have forty-five (or in the case of a GmbH & Co. KG, its general partner) shall deliver to the respective Agent within thirty (3045) Business Days of request from the date the Required Holders have contested the Management Determination to provide to the holders an up-to-date balance sheet of expert opinion (the “Expert’s Determination”) by one or more legal and/or audit experts appointed by the German Guarantor (or in at its own cost and expense), confirming the case of a GmbH & Co. KG, of its general partner's) drawn amount up by to which the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor together with a detailed calculation (satisfactory to the respective Agent) enforcement of the amount of Guarantee would comply with the German Guarantor's capital maintenance requirements pursuant to Sections 30, 31 GmbH-Act (or in the each case of a GmbH & Co. KG, its general partner's) Net Assets taking into account the adjustments set forth out in paragraph (bd) above above).
(f) If the "Auditor's Required Holders disagree with the Expert’s Determination"). Such balance sheet and Auditor's Determination , the holders shall be prepared in accordance with generally accepted accounting principles in Germany consistently applied. Each Agent shall nevertheless be entitled to enforce the Guaranteed Obligations in an Guarantee up to the amount which wouldis undisputed between themselves and the German Guarantor. In relation to the amount which is disputed, the amounts determined in accordance with the Auditor's Determination, not cause a Capital Impairment of Expert’s Determination shall be (except for manifest error) binding for the German Guarantor (or in and the case of a GmbH & Co. KG, of its general partner's)holders.
(eg) If as a result of the German Guarantor claims that the enforcement of the Guaranteed Obligations its Net Assets Guarantee would be reduced below lead to the amount occurrence of its registered share capitala Limitation Event, then the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall without undue delay (unverzüglich) bearing in mind the legitimate interests of the Secured Parties after its receipt of a written request by the respective Agent realise, – to the extent legally permitted, lawful and commercially justifiable – realise at market value any and all of its assets that are shown in the its balance sheet with a book value (Buchwert) that which is materially (in the opinion of the Required Holders) significantly lower than the their market value of and to the extent that such asset(s) and that assets are not required necessary for the German Guarantor’s business of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's) (nicht betriebsnotwendig). After , to the realisation of such asset(s) extent necessary to satisfy the German Guarantor (or in amounts demanded under the case of a GmbH & Co. KG, its general partner) shall, within five (5) Business Days, notify the respective Agent of the amount of the proceeds from the sale and submit a statement with a new calculation of the amount of the Net Assets taking into account such proceeds. Such calculation shall, upon the relevant Agent's request, be confirmed by the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor within a period of twenty (20) Business Days following the requestGuarantee.
(fh) The restriction under paragraph (a) above shall Limitation on Enforcement does not apply:
(i) if affect the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has not complied with its obligations pursuant to paragraphs (c) through (e) above;
(ii) when, at the time of enforcement right of the Guaranteed Obligationsholders to claim again any outstanding amount at a later point in time, the restrictions under paragraph (a) above are, due to a change of the applicable laws, the interpretation thereof or otherwise, not required to protect the managing directors of the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) or of any of its direct or indirect shareholders from the risk of personal liability;
(iii) if the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch);
(iv) if and so long it is party to a domination and/or profit and loss pooling agreement (Beherrschungsvertrag und/oder Gewinnabführungsvertrag) or a chain of domination and/or profit and loss pooling agreements as a dominated or profit distributing entity with its shareholder or with any of its shareholder's affiliated companies within the meaning of section 15 German Stock Corporation Act whose obligations are secured (other than the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) subsidiaries) as dominating or profit receiving entity, on the date of the enforcement, provided that the Administrative Agent provides evidence that the mere existence of such domination and/or profit and loss pooling agreement on such date is sufficient to suspend the restrictions imposed by sections 30, 31 German Limited Liability Companies Act; including, in particular, that it is not required for such suspension that the relevant German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch) against any such dominating or profit receiving entity; or
(v) to the extent that the Guaranteed Obligations secure any Loans that are on-lent by the relevant Borrower to the German Guarantor (or in the case of a GmbH & Co. KG, its general partner)(or any of its subsidiaries) and have not yet been repaid by the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) (or its subsidiaries) prior to the time of the intended enforcement.
(g) No limitation of enforcement of the Guaranteed Obligations in accordance with the above limitations will prejudice the rights of any Agent to continue enforcing the Guaranteed Obligations (subject always to the operation of the limitation set out above at the time of such enforcement) until full satisfaction of the Secured Obligations.
(hi) The maximum amount payable This Section 24.11 (German Guarantor Limiting Language) shall apply mutatis mutandis (i) if the Guarantee is granted by a German Guarantor existing incorporated in Germany as a limited liability partnership (GmbH & Co. KG) in relation to the form of a German limited liability company as general partner (GmbHKomplementär) or a of such Guarantor and (ii) to any limited liability company incorporated (or limited partnership with a limited liability company established) in a jurisdiction other than Germany whose centre of main interest (as partner that term is used in Article 3(1) of The Council of the European Union Regulation No. 2015/848 on Insolvency Proceedings) is in Germany.
(GmbH & Co. KGj) In addition to the limitations on the enforcement of the Guarantee, it is hereby agreed that the German Guarantor shall have a defence against any claim, enforcement, or other request for performance or requirement to perform, whether such requirement is based on statute, contract or otherwise, to the extent such claim, enforcement or other performance would result in personal liability for the German Guarantor’s managing director(s) under this Article X then applicable law and any claims arising under the Guarantee shall be limited to the extent of such German Guarantor (or in the case of a GmbH & Co. KGdefence, its general partner), as a consequence of the payment, would become unable to pay its other debts as they due (zahlungsunfähig) within the meaning of section 64 sentence 3 German Limited Liability Companies Act (the "Liquidity Impairment") and this payment were to result in such that such personal liability would not be incurred. Nothing herein shall nor shall be deemed to prevent the holders from asserting, in a court of law or otherwise, that the claim, enforcement or other request for performance would not cause the German Guarantor's ’s managing director(s) to incur any liability, nor shall it prevent the German Guarantor from asserting, in a court of law or otherwise, to the contrary.
(k) Should new legislation or in the case jurisprudence of a GmbH & Co. KGhigher regional court (Oberlandesgericht) or the Federal Court of Justice (Bundesgerichtshof) – including, without limitation, based on proceedings initiated by the German Guarantor and/or its general partner's) managing directors (Geschäftsführer) pursuant or the Required Holders – being published, entered into and/or come into force after the Tenth Amendment Effective Date and should such law or court ruling lead to section 64 sentence 3 German Limited Liability Companies Act, it being understood that as of the date of this Agreement the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) managing directors do not foresee any enforcement under this Article X. In respect of such Liquidity Impairment, the following shall applydifferent legal and/or factual assessment:
(i) of the granting of the Guarantee by the German Guarantor, the holders shall, upon the German Guarantor’s managing directors’ (Geschäftsführer) request, enter into good faith negotiations on possible amendments to this Section 24.11 (German Guarantor Limiting Language) to the extent necessary to avoid the managing directors’ (Geschäftsführer) personal liability resulting from the granting of the Guarantee (taking into account the initial intention of the limitations set out in this Section 24.11 (German Guarantor Limiting Language) and, including but not limited to, amending reference points for the purpose assessment whether or not a violation of establishing whether a Liquidity Impairment would occur§§ 30, 31 GmbHG has occurred); or
(ii) of the enforcement of the Guarantee so that the limitations in this Section 24.11 (German Guarantor Limiting Language) are, are not, or are only partially, required to protect the managing directors (Geschäftsführer) of the German Guarantor from the risk of personal liability arising from the enforcement of the Guarantee, the following payments German Guarantor shall, upon the Required Holders’ request, enter into good faith negotiations on possible amendments to this Section 24.11 (German Guarantor Limiting Language) to the extent such provisions are, are not, or are only partially, required anymore to protect the managing directors (Geschäftsführer) of the German Guarantor from the risk of personal liability arising from the enforcement of the Guarantee.
(l) Notwithstanding anything to the contrary in this Agreement, this Section 24.11 (German Guarantor Limiting Language) and claims any rights or obligations arising out of it shall be disregardedgoverned by, unless otherwise agreed with the Administrative Agent:and construed in accordance with, German law.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
German Guarantee Limitations. (a) The right of the Secured Parties to enforce the Guaranteed Obligations of a German Guarantor existing in the form of a German limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) or a limited liability partnership with a limited liability company as partner (GmbH & Co. KG) under this Article X shall be limited if and to To the extent that the Guaranteed Obligations secure guarantee created under this Guarantee Agreement or any other obligation of an affiliated company which qualifies as a “payment” (verbundenes UnternehmenZahlung) within the meaning of section 15 Sections 30, 31 of the German Stock Corporation Limited Liabilities Company Act (AktiengesetzGmbHG) (the “GmbH-Act”) (the “Guarantee”) is granted or incurred by a Guarantor incorporated in Germany as a limited liability company (GmbH) (each case other than any of such a “German Guarantor's ” and collectively, “German Guarantors”), currently CB&I Xxxxxx GmbH and CB&I Novolen Technology GmbH, and the Guarantee of the German Guarantor guarantees amounts which are owed by any current or future direct or indirect subsidiariesshareholders of the German Guarantor or Subsidiaries of such shareholders (with the exception of Subsidiaries which are also Subsidiaries of the German Guarantor), the Guarantee of the German Guarantor shall be subject to certain limitations as set out in the following paragraphs of this clause. In relation to any other amounts guaranteed, the Guarantee of the German Guarantor remains unlimited.
(b) Subject to paragraphs (e) and (f) below, the holders agree that the enforcement of such Guaranteed Obligations would cause:
the Guarantee shall be limited in relation to any German Guarantor, provided that the German Guarantor is able to demonstrate as determined pursuant to the procedures set forth in paragraph (e) below that by enforcing the Guarantee (i) such its (or, if a parent entity is a German Guarantor's (or in the case of a GmbH & Co. KG, its general partner'ssuch parent entity’s) net assets (Reinvermögen) determined in accordance with the provisions of the German Commercial Code (HandelsgesetzbuchHGB) consistently applied by such German Guarantor (or in the case of a GmbH & Co. KG, its general partner) in preparing its unconsolidated balance sheets (Jahresabschluss) according to section 42 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung), sections 242, 264 German Commercial Code and in accordance with sections 30, 31 German Limited Liability Companies Act (as applicable at the time of enforcement“HGB”)) (such net assets of any German Guarantor or its parent entity, the "“Net Assets"”) would be caused to be less than fall below its registered share capital (Stammkapital) (Begründung einer Unterbilanz); or
or (ii) (if such German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets are were already less lower than its registered share capital) the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets such enforcement would cause such amount to be further reduced (Vertiefung einer der Unterbilanz) if and to the extent such limitation is necessary to avoid a violation of Section 30 or 31 GmbH-Act (in each case a "Capital Impairment"“Limitation on Enforcement” or “Limitation Event”).
(c) Paragraph (b) above shall not apply with respect to (i) loans or other financial accommodation made available to, or bank guarantees issued for the benefit of creditors of, such German Guarantor or a Subsidiary of such German Guarantor by a holder under the Note Agreement and (ii) amounts due and payable under the Guarantee which relate to funds made available under the Note Agreement which have been on-lent to that German Guarantor or any of its Subsidiaries, in each case to the extent that any such on-lending is outstanding at the time of the enforcement of the Guarantee. For the avoidance of doubt, nothing in this paragraph (c) shall have the effect that such on-lent amounts may be enforced multiple times (no double dip).
(d) For the purposes of the calculation of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets:
(i) the amount of any increase of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) registered share capital that has been effected without the prior written consent of any Agent or is otherwise permitted under this Agreement and the other Loan Documents shall be deducted from the registered share capital;
(ii) any obligations of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner) towards any of the Borrowers or any of their affiliates which are subordinated in accordance with section 39 para. 1 no. 5 German Insolvency Code (Insolvenzordnung), shall be disregarded; and
(iii) loans and other liabilities incurred by the German Guarantor (or in the case of a GmbH & Co. KG, by its general partner) in violation of the provisions of this Agreement or any other Loan Document shall be disregarded.
(c) The German Guarantor shall deliver to the Agent, within ten (10) Business Days after receipt from the Agent of a notice stating that the Agent intends to enforce the Guaranteed Obligations an up-to-date balance sheet of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner) together with a detailed calculation (satisfactory to the Agent) of the amount of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets taking into account the adjustments set forth in pursuant to paragraph (b) above (the "Management Determination"). Any Agent shall be entitled to enforce the Guaranteed Obligations in an amount which would, in accordance with the Management Determination, not cause a Capital Impairment of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner).
(d) Following the relevant Agent's receipt of the Management Determination, upon request by the relevant Agent, the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall deliver to the respective Agent within thirty (30) Business Days of request an up-to-date balance sheet of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's) drawn up by the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor together with a detailed calculation (satisfactory to the respective Agent) of the amount of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets taking into account the adjustments set forth in paragraph (b) above (the "Auditor's Determination"). Such balance sheet and Auditor's Determination shall be prepared in accordance with generally accepted accounting principles in Germany consistently applied. Each Agent shall be entitled to enforce the Guaranteed Obligations in an amount which would, in accordance with the Auditor's Determination, not cause a Capital Impairment of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's).
(e) If as a result of the enforcement of the Guaranteed Obligations its Net Assets would be reduced below the amount of its registered share capital, the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall without undue delay (unverzüglich) bearing in mind the legitimate interests of the Secured Parties after its receipt of a written request by the respective Agent realise, to the extent legally permitted, any and all of its assets shown in the balance sheet with a book value (Buchwert) that is materially lower than the market value of such asset(s) and that are not required for the business of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's) (nicht betriebsnotwendig). After the realisation of such asset(s) the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall, within five (5) Business Days, notify the respective Agent of the amount of the proceeds from the sale and submit a statement with a new calculation of the amount of the Net Assets taking into account such proceeds. Such calculation shall, upon the relevant Agent's request, be confirmed by the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor within a period of twenty (20) Business Days following the request.
(f) The restriction under paragraph (a) above shall not apply:
(i) if the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has not complied with its obligations pursuant to paragraphs (c) through (e) above;
(ii) when, at the time of enforcement of the Guaranteed Obligations, the restrictions under paragraph (a) above are, due to a change of the applicable laws, the interpretation thereof or otherwise, not required to protect the managing directors of the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) or of any of its direct or indirect shareholders from the risk of personal liability;
(iii) if the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch);
(iv) if and so long it is party to a domination and/or profit and loss pooling agreement (Beherrschungsvertrag und/oder Gewinnabführungsvertrag) or a chain of domination and/or profit and loss pooling agreements as a dominated or profit distributing entity with its shareholder or with any of its shareholder's affiliated companies within the meaning of section 15 German Stock Corporation Act whose obligations are secured (other than the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) subsidiaries) as dominating or profit receiving entity, on the date of the enforcement, provided that the Administrative Agent provides evidence that the mere existence of such domination and/or profit and loss pooling agreement on such date is sufficient to suspend the restrictions imposed by sections 30, 31 German Limited Liability Companies Act; including, in particular, that it is not required for such suspension that the relevant German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch) against any such dominating or profit receiving entity; or
(v) to the extent that the Guaranteed Obligations secure any Loans that are on-lent by the relevant Borrower to the German Guarantor (or in the case of a GmbH & Co. KG, its general partner)(or any of its subsidiaries) and have not yet been repaid by the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) (or its subsidiaries) prior to the time of the intended enforcement.
(g) No limitation of enforcement of the Guaranteed Obligations in accordance with the above limitations will prejudice the rights of any Agent to continue enforcing the Guaranteed Obligations (subject always to the operation of the limitation set out above at the time of such enforcement) until full satisfaction of the Secured Obligations.
(h) The maximum amount payable by a German Guarantor existing in the form of a German limited liability company (GmbH) or a limited liability partnership with a limited liability company as partner (GmbH & Co. KG) under this Article X shall be limited to the extent such German Guarantor (or in the case of a GmbH & Co. KG, its general partner), as a consequence of the payment, would become unable to pay its other debts as they due (zahlungsunfähig) within the meaning of section 64 sentence 3 German Limited Liability Companies Act (the "Liquidity Impairment") and this payment were to result in personal liability of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) managing directors (Geschäftsführer) pursuant to section 64 sentence 3 German Limited Liability Companies Act, it being understood that as of the date of this Agreement the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) managing directors do not foresee any enforcement under this Article X. In respect of such Liquidity Impairment, the following shall apply:
(i) for the purpose of establishing whether a Liquidity Impairment would occur, the following payments and claims balance sheet items shall be disregarded, unless otherwise agreed with the Administrative Agentadjusted as follows:
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
German Guarantee Limitations. (a) The right of the Secured Parties to enforce the Guaranteed Obligations of a German Guarantor existing in the form of a German limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) or a limited liability partnership with a limited liability company as partner (GmbH & Co. KG) under this Article X shall be limited if and to To the extent that the Guaranteed Obligations secure guarantee created under this Guarantee Agreement or any other obligation of an affiliated company which qualifies as a “payment” (verbundenes UnternehmenZahlung) within the meaning of section 15 Sections 30, 31 of the German Stock Corporation Limited Liabilities Company Act (AktiengesetzGmbHG) (the “GmbH-Act”) (the “Guarantee”) is granted or incurred by a Guarantor incorporated in Germany as a limited liability company (GmbH) (each case other than any of such a “German Guarantor's ” and collectively, “German Guarantors”), currently CB&I Xxxxxx GmbH and CB&I Novolen Technology GmbH, and the Guarantee of the German Guarantor guarantees amounts which are owed by any current or future direct or indirect subsidiariesshareholders of the German Guarantor or Subsidiaries of such shareholders (with the exception of Subsidiaries which are also Subsidiaries of the German Guarantor), the Guarantee of the German Guarantor shall be subject to certain limitations as set out in the following paragraphs of this clause. In relation to any other amounts guaranteed, the Guarantee of the German Guarantor remains unlimited.
(b) Subject to paragraphs (e) and (f) below, the holders agree that the enforcement of such Guaranteed Obligations would cause:
the Guarantee shall be limited in relation to any German Guarantor, provided that the German Guarantor is able to demonstrate as determined pursuant to the procedures set forth in paragraph (e) below that by enforcing the Guarantee (i) such its (or, if a parent entity is a German Guarantor's (or in the case of a GmbH & Co. KG, its general partner'ssuch parent entity’s) net assets (Reinvermögen) determined in accordance with the provisions of the German Commercial Code (HandelsgesetzbuchHGB) consistently applied by such German Guarantor (or in the case of a GmbH & Co. KG, its general partner) in preparing its unconsolidated balance sheets (Jahresabschluss) according to section 42 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung), sections 242, 264 German Commercial Code and in accordance with sections 30, 31 German Limited Liability Companies Act (as applicable at the time of enforcement“HGB”)) (such net assets of any German Guarantor or its parent entity, the "“Net Assets"”) would be caused to be less than fall below its registered share capital (Stammkapital) (Begründung einer Unterbilanz); or
or (ii) (if such German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets are were already less lower than its registered share capital) the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets such enforcement would cause such amount to be further reduced (Vertiefung einer der Unterbilanz) if and to the extent such limitation is necessary to avoid a violation of Section 30 or 31 GmbH-Act (in each case a "Capital Impairment"“Limitation on Enforcement” or “Limitation Event”).
(c) Paragraph (b) above shall not apply with respect to (i) loans or other financial accommodation made available to, or bank guarantees issued for the benefit of creditors of, such German Guarantor or a Subsidiary of such German Guarantor by a holder under the Note Agreement and (ii) amounts due and payable under the Guarantee which relate to funds made available under the Note Agreement which have been on-lent to that German Guarantor or any of its Subsidiaries, in each case to the extent that any such on-lending is outstanding at the time of the enforcement of the Guarantee. For the avoidance of doubt, nothing in this paragraph (c) shall have the effect that such on-lent amounts may be enforced multiple times (no double dip).
(d) For the purposes of the calculation of Net Assets pursuant to paragraph (b) above, the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assetsfollowing balance sheet items shall be adjusted as follows:
(i) the The amount of any increase of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) registered stated share capital that has been effected (Stammkapital) of the German Guarantor registered after the date of this Guarantee Agreement without the prior written consent of any Agent or is otherwise permitted under this Agreement and the other Loan Documents holders shall be deducted from the registered relevant stated share capital;
(ii) any obligations loans and other liabilities incurred in violation of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner) towards any provisions of the Borrowers or any of their affiliates which are subordinated in accordance with section 39 para. 1 no. 5 German Insolvency Code (Insolvenzordnung), Note Agreement shall be disregarded. The cash pool agreement facilitated by Bank Mendes Xxxx to which the German Guarantors are parties does not violate any loan provisions; and
(iii) loans the amount of non-distributable assets according to paragraph 8 of Section 268 HGB shall not be included in the calculation of Net Assets.
(e) The Limitation on Enforcement shall only apply if and other liabilities incurred to the extent that:
(i) if following notification by the Required Holders of claims raised under the Guarantee, the German Guarantor (or in the case of a GmbH & Co. KG, by its general partner) in violation of the provisions of this Agreement or any other Loan Document shall be disregarded.
(c) The German Guarantor shall deliver provides evidence reasonably satisfactory to the AgentRequired Holders, including in particular un-audited interim financial statements, within ten fifteen (1015) Business Days after receipt from (the Agent “Management Determination”) stating:
(A) the extent to which the enforcement of a notice stating that an unlimited Guarantee would cause the Agent intends to enforce the Guaranteed Obligations an up-to-date balance sheet Net Assets of the such German Guarantor (or in to fall below its stated share capital or, if the case of a GmbH & Co. KG, of its general partner) together with a detailed calculation (satisfactory to the Agent) of the amount of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets were already less than its stated share capital (Stammkapital), would cause such amount to be further reduced (in each case taking into account the adjustments set forth out in paragraph (bd) above above) and thereby lead to a violation of the capital maintenance requirement as set out in Sections 30, 31 GmbH-Act;
(B) up to which amount the enforcement of the Guarantee would comply with the capital requirements as set out in Section 30, 31 GmbH-Act (the "Management Determination"“Guarantee Enforcement Amount”). Any Agent shall ; and
(C) where the Guarantee is proposed to be entitled enforced against a German Guarantor that is a subsidiary of another German Guarantor, the extent to enforce which the Guaranteed Obligations in an amount which would, in accordance with unlimited enforcement of the Management Determination, not Guarantee against the subsidiary German Guarantor would cause a Capital Impairment of Limitation Event with respect to the parent German Guarantor (or in the case of a GmbH & Co. KG, of its general partner)Guarantor.
(dii) Following If the relevant Agent's Required Holders have contested the Management Determination (which they may do within fifteen (15) Business Days of their receipt of the Management Determination) by claiming that (a) no Limitation Event is to apply or (b) the Guarantee Enforcement Amount could be higher without breaching the capital maintenance requirement as set out in Sections 30, upon request by 31 of the relevant AgentGmbH-Act, the German Guarantor shall have forty-five (or in the case of a GmbH & Co. KG, its general partner) shall deliver to the respective Agent within thirty (3045) Business Days of request from the date the Required Holders have contested the Management Determination to provide to the holders an up-to-date balance sheet of expert opinion (the “Expert’s Determination”) by one or more legal and/or audit experts appointed by the German Guarantor (or in at its own cost and expense), confirming the case of a GmbH & Co. KG, of its general partner's) drawn amount up by to which the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor together with a detailed calculation (satisfactory to the respective Agent) enforcement of the amount of Guarantee would comply with the German Guarantor's capital maintenance requirements pursuant to Sections 30, 31 GmbH-Act (or in the each case of a GmbH & Co. KG, its general partner's) Net Assets taking into account the adjustments set forth out in paragraph (bd) above above).
(f) If the "Auditor's Required Holders disagree with the Expert’s Determination"). Such balance sheet and Auditor's Determination , the holders shall be prepared in accordance with generally accepted accounting principles in Germany consistently applied. Each Agent shall nevertheless be entitled to enforce the Guaranteed Obligations in an Guarantee up to the amount which wouldis undisputed between themselves and the German Guarantor. In relation to the amount which is disputed, the amounts determined in accordance with the Auditor's Determination, not cause a Capital Impairment of Expert’s Determination shall be (except for manifest error) binding for the German Guarantor (or in and the case of a GmbH & Co. KG, of its general partner's)holders.
(eg) If as a result of the German Guarantor claims that the enforcement of the Guaranteed Obligations its Net Assets Guarantee would be reduced below lead to the amount occurrence of its registered share capitala Limitation Event, then the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall without undue delay (unverzüglich) bearing in mind the legitimate interests of the Secured Parties after its receipt of a written request by the respective Agent realise, – to the extent legally permitted, lawful and commercially justifiable – realise at market value any and all of its assets that are shown in the its balance sheet with a book value (Buchwert) that which is materially (in the opinion of the Required Holders) significantly lower than the their market value of and to the extent that such asset(s) and that assets are not required necessary for the German Guarantor’s business of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's) (nicht betriebsnotwendig). After , to the realisation of such asset(s) extent necessary to satisfy the German Guarantor (or in amounts demanded under the case of a GmbH & Co. KG, its general partner) shall, within five (5) Business Days, notify the respective Agent of the amount of the proceeds from the sale and submit a statement with a new calculation of the amount of the Net Assets taking into account such proceeds. Such calculation shall, upon the relevant Agent's request, be confirmed by the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor within a period of twenty (20) Business Days following the requestGuarantee.
(fh) The restriction under paragraph (a) above shall Limitation on Enforcement does not apply:
(i) if affect the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has not complied with its obligations pursuant to paragraphs (c) through (e) above;
(ii) when, at the time of enforcement right of the Guaranteed Obligationsholders to claim again any outstanding amount at a later point in time, the restrictions under paragraph (a) above are, due to a change of the applicable laws, the interpretation thereof or otherwise, not required to protect the managing directors of the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) or of any of its direct or indirect shareholders from the risk of personal liability;
(iii) if the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch);
(iv) if and so long it is party to a domination and/or profit and loss pooling agreement (Beherrschungsvertrag und/oder Gewinnabführungsvertrag) or a chain of domination and/or profit and loss pooling agreements as a dominated or profit distributing entity with its shareholder or with any of its shareholder's affiliated companies within the meaning of section 15 German Stock Corporation Act whose obligations are secured (other than the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) subsidiaries) as dominating or profit receiving entity, on the date of the enforcement, provided that the Administrative Agent provides evidence that the mere existence of such domination and/or profit and loss pooling agreement on such date is sufficient to suspend the restrictions imposed by sections 30, 31 German Limited Liability Companies Act; including, in particular, that it is not required for such suspension that the relevant German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch) against any such dominating or profit receiving entity; or
(v) to the extent that the Guaranteed Obligations secure any Loans that are on-lent by the relevant Borrower to the German Guarantor (or in the case of a GmbH & Co. KG, its general partner)(or any of its subsidiaries) and have not yet been repaid by the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) (or its subsidiaries) prior to the time of the intended enforcement.
(g) No limitation of enforcement of the Guaranteed Obligations in accordance with the above limitations will prejudice the rights of any Agent to continue enforcing the Guaranteed Obligations (subject always to the operation of the limitation set out above at the time of such enforcement) until full satisfaction of the Secured Obligations.
(hi) The maximum amount payable This Section 17 (German guarantee limitations) shall apply mutatis mutandis (i) if the Guarantee is granted by a German Guarantor existing incorporated in Germany as a limited liability partnership (GmbH & Co. KG) in relation to the form of a German limited liability company as general partner (GmbHKomplementär) or a of such Guarantor and (ii) to any limited liability company incorporated (or limited partnership with a limited liability company established) in a jurisdiction other than Germany whose centre of main interest (as partner that term is used in Article 3(1) of The Council of the European Union Regulation No. 2015/848 on Insolvency Proceedings) is in Germany.
(GmbH & Co. KGj) In addition to the limitations on the enforcement of the Guarantee, it is hereby agreed that the German Guarantor shall have a defence against any claim, enforcement, or other request for performance or requirement to perform, whether such requirement is based on statute, contract or otherwise, to the extent such claim, enforcement or other performance would result in personal liability for the German Guarantor’s managing director(s) under this Article X then applicable law and any claims arising under the Guarantee shall be limited to the extent of such German Guarantor (or in the case of a GmbH & Co. KGdefence, its general partner), as a consequence of the payment, would become unable to pay its other debts as they due (zahlungsunfähig) within the meaning of section 64 sentence 3 German Limited Liability Companies Act (the "Liquidity Impairment") and this payment were to result in such that such personal liability would not be incurred. Nothing herein shall nor shall be deemed to prevent the holders from asserting, in a court of law or otherwise, that the claim, enforcement or other request for performance would not cause the German Guarantor's ’s managing director(s) to incur any liability, nor shall it prevent the German Guarantor from asserting, in a court of law or otherwise, to the contrary.
(k) Should new legislation or in the case jurisprudence of a GmbH & Co. KGhigher regional court (Oberlandesgericht) or the Federal Court of Justice (Bundesgerichtshof) – including, without limitation, based on proceedings initiated by the German Guarantor and/or its general partner's) managing directors (Geschäftsführer) pursuant to section 64 sentence 3 German Limited Liability Companies Actor the Required Holders – being published, it being understood that as of entered into and/or come into force after the date of this Agreement the German Guarantor's (Amendment No. 10 and should such law or in the case of court ruling lead to a GmbH & Co. KG, its general partner's) managing directors do not foresee any enforcement under this Article X. In respect of such Liquidity Impairment, the following shall applydifferent legal and/or factual assessment:
(i) of the granting of the Guarantee by the German Guarantor, the holders shall, upon the German Guarantor’s managing directors’ (Geschäftsführer) request, enter into good faith negotiations on possible amendments to this Section 17 (German guarantee limitations) to the extent necessary to avoid the managing directors’ (Geschäftsführer) personal liability resulting from the granting of the Guarantee (taking into account the initial intention of the limitations set out in this Section 17 (German guarantee limitations) and, including but not limited to, amending reference points for the purpose assessment whether or not a violation of establishing whether a Liquidity Impairment would occur§§ 30, 31 GmbHG has occurred); or
(ii) of the enforcement of the Guarantee so that the limitations in this Section 17 (German guarantee limitations) are, are not, or are only partially, required to protect the managing directors (Geschäftsführer) of the German Guarantor from the risk of personal liability arising from the enforcement of the Guarantee, the following payments German Guarantor shall, upon the Required Holders’ request, enter into good faith negotiations on possible amendments to this Section 17 (German guarantee limitations) to the extent such provisions are, are not, or are only partially, required anymore to protect the managing directors (Geschäftsführer) of the German Guarantor from the risk of personal liability arising from the enforcement of the Guarantee.
(l) Notwithstanding anything to the contrary in this Guarantee Agreement, this Section 17 (German guarantee limitations) and claims any rights or obligations arising out of it shall be disregardedgoverned by, unless otherwise agreed with the Administrative Agent:and construed in accordance with, German law.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
German Guarantee Limitations. (a) The right of the Secured Parties to enforce the Guaranteed Obligations of a In this Clause 21.10:
(i) German Guarantor existing means any Guarantor incorporated in the form of Germany as (x) a German limited liability company (Gesellschaft mit beschränkter Haftung, Haftung - GmbH) (a German GmbH Guarantor) or (y) a limited liability partnership (Kommanditgesellschaft) with a limited liability company as sole general partner (a German GmbH & Co. KGKG Guarantor) under this Article X shall be limited if in relation to whom the Security Trustee intends to enforce the provisions of Clause 21 (Guarantee and to the extent that the Guaranteed Obligations secure any obligation of an affiliated company (verbundenes Unternehmen) within the meaning of section 15 German Stock Corporation Act (Aktiengesetz) (in each case other than any of such German Guarantor's direct or indirect subsidiaries) and the enforcement of such Guaranteed Obligations would cause:Indemnity); and
(iii) such German Guarantor's (or in Net Assets means the case of a GmbH & Co. KG, its general partner's) net relevant company’s assets (ReinvermögenSection 266 sub-section (2) determined in accordance with the provisions A, B, C, D and E of the German Commercial Code (Handelsgesetzbuch) consistently less (i) its non-distributable assets (Sections 253 sub-section (6) and 268 sub-section (8) of the German Commercial Code), (ii) the aggregate of its liabilities (Section 266 sub-section (3) B, C (but disregarding, for the avoidance of doubt, any provisions in respect of its obligations under Clause 21 (Guarantee and Indemnity)), D and E of the German Commercial Code) and (iii) its stated share capital (Stammkapital).
(b) Each of the Finance Parties agrees not to enforce the provisions of Clause 21 (Guarantee and Indemnity) (and not to request the Security Trustee to enforce the provisions of Clause 21 (Guarantee and Indemnity)), if and to the extent that the provisions of Clause 21 (Guarantee and Indemnity) guarantees obligations or the payment is to be applied by such in satisfaction of any liability of an Obligor which is an affiliate of that German Guarantor (or other than the German Guarantor’s Subsidiaries) (the Guaranteed Obligor) and if and to the extent that such enforcement would cause such German Guarantor’s (or, in the case of a German GmbH & Co. KGKG Guarantor, its general partner) in preparing its unconsolidated balance sheets (Jahresabschluss) according to section 42 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung), sections 242, 264 German Commercial Code and in accordance with sections 30, 31 German Limited Liability Companies Act (as applicable at the time of enforcement)) (the "Net Assets") to be less than its registered share capital (Stammkapital) (Begründung einer Unterbilanz); or
(ii) (if such German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets are already less than its registered share capital) the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's’s) Net Assets to be reduced below zero or further reduced (Vertiefung einer Unterbilanz) (in each case a "Capital Impairment")if already below zero.
(bc) For the purposes of the calculation of the German Guarantor's (or in Net Assets the case of a GmbH & Co. KG, its general partner's) Net Assetsfollowing balance sheet items shall be adjusted as follows:
(i) the amount of any increase of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) registered stated share capital (Erhöhungen des Stammkapitals) after the date of this Agreement (excluding any such increase of stated share capital permitted pursuant to the Finance Documents) (A) that has been effected without the prior written consent of any Agent the Facility Agent, or (B) to the extent that it is otherwise permitted under this Agreement and the other Loan Documents not fully paid up, shall be deducted from the registered stated share capital;
(ii) any obligations the Net Assets shall take into account reasonable costs of the German Guarantor Auditor’s Determination (or in the case of a GmbH & Co. KG, of its general partner) towards any of the Borrowers or any of their affiliates which are subordinated in accordance with section 39 para. 1 no. 5 German Insolvency Code (Insolvenzordnungas defined below), shall be disregardedeither as a reduction of assets or an increase of liabilities; and
(iii) loans and other liabilities incurred by provided to the relevant German Guarantor in violation of the Finance Documents shall be disregarded.
(d) The relevant German Guarantor shall deliver to the Security Trustee, within fifteen Business Days after receipt from the Security Trustee of a notice stating that the Security Trustee intends to enforce the provisions of Clause 21 (Guarantee and Indemnity) (the Enforcement Notice), its up-to-date balance sheet, or in the case of a German GmbH & Co. KG, by KG Guarantor of its partnership and its general partner) in violation , together with a detailed calculation of the provisions amount of this Agreement or any other Loan Document shall be disregardedits Net Assets (or, as applicable, its general partner’s Net Assets) taking into account the adjustments set forth in paragraph (c) above (the Management Determination).
(ce) The German Following the Security Trustee’s receipt of the Management Determination, upon request by the Security Trustee (acting reasonably), the relevant Guarantor shall deliver to the Agent, Security Trustee within ten (10) twenty-five Business Days after receipt from the Agent of a notice stating that the Agent intends to enforce the Guaranteed Obligations an such request its up-to-date balance sheet of the German Guarantor (sheet, or in the case of a German GmbH & Co. KG, KG Guarantor of that partnership and its general partner) , drawn-up by one of the Auditors together with a detailed calculation (satisfactory to the Agent) of the amount of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets taking into account the adjustments set forth in paragraph (bc) above (the "Management Auditors’ Determination"). Any Agent Such balance sheet and Auditors’ Determination shall be prepared in accordance with German generally accepted accounting principles pursuant to the German Commercial Code (Handelsgesetzbuch) as consistently applied. The Auditors’ Determination shall be prepared with respect to the date of receipt of the Enforcement Notice. The amount determined as available for enforcement in the Auditors’ Determination shall be (except for manifest error) binding for all Parties.
(f) The Security Trustee shall be entitled to enforce the Guaranteed Obligations provisions of Clause 21 (Guarantee and Indemnity) in an amount which would, in accordance with the Management Determination or, if applicable and taking into account any previous enforcement in accordance with the Management Determination, the Auditor’s Determination, not cause a Capital Impairment of the German Guarantor (Guarantor’s Net Assets, or in the case of a German GmbH & Co. KGKG Guarantor, of its general partner).
(d) Following ’s Net Assets, to be reduced below zero or further reduced if already below zero. If and to the relevant Agent's receipt of extent the Net Assets as determined by the Auditors’ Determination to be enforceable are lower than the amount enforced in accordance with the Management Determination, upon request by the Security Trustee shall promptly release to the relevant Agent, the German Guarantor (or in the case of a German GmbH & Co. KG, KG Chargor to its general partner) shall deliver such excess enforcement proceeds. The Security Trustee may withhold any amount received pursuant to the respective Agent within thirty (30) Business Days of request an up-to-date balance sheet enforcement of the German Guarantor provisions of Clause 21 (or in the case of a GmbH & Co. KG, of its general partner'sGuarantee and Indemnity) drawn up by the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor together with a detailed calculation (satisfactory to the respective Agent) until final determination of the amount of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) enforceable Net Assets taking into account pursuant to the adjustments set forth in paragraph (b) above (the "Auditor's Auditors’ Determination"). Such balance sheet and Auditor's Determination shall be prepared in accordance with generally accepted accounting principles in Germany consistently applied. Each Agent shall be entitled to enforce the Guaranteed Obligations in an amount which would, in accordance with the Auditor's Determination, not cause a Capital Impairment of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner's).
(eg) If as a result of the enforcement of the Guaranteed Obligations its Net Assets would be reduced below the amount of its registered share capitalIn addition, the any German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall without undue delay (unverzüglich) bearing and in mind any event within two months after the legitimate interests of the Secured Parties after its receipt of a written request by the respective Agent realiseEnforcement Notice dispose of, to the extent legally permitted, in a situation where after enforcement of the provisions of Clause 21 (Guarantee and Indemnity) the German GmbH Guarantor, or in the case of a German GmbH & Co. KG Guarantor, its general partner, would not have Net Assets in excess of zero, any and all of its assets that are shown in the balance sheet with a book value (Buchwert) that is materially significantly lower than the market value of the asset if such asset(s) and that are asset is not required necessary for the business of the relevant German Guarantor (or in to continue its, or, where the case of guarantor is a German GmbH & Co. KGKG Guarantor, of its general partner's) ’s existing business (nicht betriebsnotwendigbetriebsnotwending). After the realisation of such asset(s) the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) shall, within five (5) Business Days, notify the respective Agent Security Trustee of the amount of the proceeds from the sale and submit a statement with a new calculation of the amount of the Net Assets of the German GmbH Guarantor or, in case of a German GmbH & Co. KG Guarantor, of its general partner, taking into account such proceeds. Such calculation shall, upon the relevant Agent's Security Trustee’s request, be confirmed by the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) auditor an Auditor within a period of twenty (20) twenty-five Business Days following the respective request.
(fh) The restriction under paragraph (ab) above shall not apply:
(i) if to the extent that the provisions of Clause 21 (Guarantee and Indemnity) guarantee any claims under the Loans that have been on-lent or otherwise made available to the relevant German Guarantor, that have not been repaid and are still outstanding on the date of enforcement of the provisions of Clause 21 (Guarantee and Indemnity);
(ii) for so long as the relevant German Guarantor (or in the case of a GmbH & Co. KG, its general partner) has not complied with its obligations pursuant to paragraphs (c) through d), (e) and/or (g) (inclusive) above;
(ii) when, at the time of enforcement of the Guaranteed Obligations, the restrictions under paragraph (a) above are, due to a change of the applicable laws, the interpretation thereof or otherwise, not required to protect the managing directors of the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) or of any of its direct or indirect shareholders from the risk of personal liability;
(iii) if the German Guarantor (or in the case of a GmbH & Co. KG, its general partneras dominated entity) has a fully recoverable recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch);
(iv) if and so long it is party subject to a domination and/or profit and loss pooling agreement (Beherrschungsvertrag Beherrschungs- und/oder Gewinnabführungsvertrag) (a DPLPA) with the Guaranteed Obligor, whether directly or a indirectly through an uninterrupted chain of domination and/or profit DPLPAs between each company and loss pooling agreements as a dominated or profit distributing entity with its shareholder or with any of its shareholder's affiliated companies within the meaning of section 15 German Stock Corporation Act whose obligations are secured (other than the German Guarantor's (or in the case of a German GmbH & Co. KG, KG Guarantor between its general partner'spartner and its shareholder) subsidiaries) as dominating or profit receiving entity, on the date of the enforcement, provided that enforcement of the Administrative Agent provides evidence that provisions of Clause 21 (Guarantee and Indemnity); or
(iv) if and to extent the mere existence of such domination and/or profit and loss pooling agreement on such date is sufficient to suspend the restrictions imposed by sections 30, 31 German Limited Liability Companies Act; including, in particular, that it is not required for such suspension that the relevant German Guarantor holds on the date of enforcement of the provisions of Clause 21 (or in the case of a GmbH & Co. KG, its general partnerGuarantee and Indemnity) has a fully recoverable recourse indemnity or claim for refund (vollwertiger Gegenleistungs- oder Rückgewähranspruch) against any such dominating or profit receiving entity; or
(v) to the extent that the Guaranteed Obligations secure any Loans that are on-lent by the relevant Borrower to the German Guarantor (or in the case of a GmbH & Co. KG, its general partner)(or any of its subsidiaries) and have not yet been repaid by the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) (or its subsidiaries) prior to the time of the intended enforcement.
(g) No limitation of enforcement of the Guaranteed Obligations in accordance with the above limitations will prejudice the rights of any Agent to continue enforcing the Guaranteed Obligations (subject always to the operation of the limitation set out above at the time of such enforcement) until full satisfaction of the Secured Obligations.
(h) The maximum amount payable by a German Guarantor existing in the form of a German limited liability company (GmbH) or a limited liability partnership with a limited liability company as partner (GmbH & Co. KG) under this Article X shall be limited to the extent such German Guarantor (or in the case of a GmbH & Co. KG, its general partner), as a consequence of the payment, would become unable to pay its other debts as they due (zahlungsunfähig) within the meaning of section 64 Section 30 (1) sentence 3 2 of the German Limited Liability Companies Act (against its shareholder covering at least the "Liquidity Impairment") and this payment were to result in personal liability of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) managing directors (Geschäftsführer) pursuant to section 64 sentence 3 German Limited Liability Companies Act, it being understood that as of the date of this Agreement the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) managing directors do not foresee any enforcement relevant amount enforced under this Article X. In respect of such Liquidity Impairment, the following shall apply:
(i) for the purpose of establishing whether a Liquidity Impairment would occur, the following payments and claims shall be disregarded, unless otherwise agreed with the Administrative Agent:guarantee.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Liberty Global PLC)
