German Guarantors. (i) The right to enforce any guarantee and indemnity created and the joint and several liability assumed hereunder against a Guarantor incorporated in Germany in the legal form of a limited liability company (GmbH) (a “German GmbH Guarantor”) shall be limited if and to the extent that such guarantee and indemnity or joint and several liability secures any obligation of an affiliated company (verbundenes Unternehmen) within the meaning of Section 15 of the German Stock Corporation Act (Aktiengesetz) (in each case other than any of the German GmbH Guarantor’s direct or indirect subsidiaries) and the enforcement of such guarantee and indemnity created or the joint and several liability assumed hereunder would cause:
(A) the German GmbH Guarantor’s net assets (determined in accordance with the provisions of the German Commercial Code (Handelsgesetzbuch, HGB) consistently applied by the German GmbH Guarantor in preparing its unconsolidated balance sheets (Jahresabschluss) according to § 42 German Limited Liability Company Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, GmbHG), §§ 242, 264 HGB and in accordance with §§ 30, 31 GmbHG (as applicable at the time of enforcement)) (the “Net Assets”) to be less than its registered share capital (Stammkapital) (Begründung einer Unterbilanz); or
(B) (if the German GmbH Guarantor’s Net Assets are already less than its registered share capital) the German GmbH Guarantor’s Net Assets to be further reduced (Vertiefung einer Unterbilanz) (in each case a “Capital Impairment”).
(ii) For the purposes of the calculation of the German GmbH Guarantor’s Net Assets:
(A) the amount of any increase of the German GmbH Guarantor’s registered share capital out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) after the date upon which it became a Guarantor hereunder that has been effected without the prior written consent of the Administrative Agent (acting on behalf of the Lenders) shall be deducted from the registered share capital;
(B) loans provided to the relevant German GmbH Guarantor by a Loan Party shall be disregarded if such loans are subordinated contractually or by statute and rank in accordance with section 39 paragraph 1 Nr. 5 or paragraph 2 of the German Insolvency Act (Insolvenzordnung);
(C) loans and other liabilities incurred by the German GmbH Guarantor in violation of the provisions of this Agreement or any other Loan Document shall be disregarded; and
(D) any amounts not available for...
German Guarantors. (a) To the extent that any obligation under this deed, in particular (but not exclusively) the guarantee and/or the indemnity created under clause 7 is undertaken and/or granted by a German Guarantor (a German Guarantee) and the German Guarantee guarantees to a Lender amounts, or creates obligations to a Lender (the Relevant Lender) for amounts which are owed by direct or indirect shareholders of the German Guarantor or affiliated companies of such shareholders (with the exception of affiliated companies which are also direct subsidiaries of the German Guarantor), the German Guarantee to the Relevant Lender shall be subject to certain limitations as set out in clause 8(b). In relation to any other amounts guaranteed, the German Guarantee remains unlimited.
(b) To the extent that a demand under this deed is made by a Relevant Lender upon a German Guarantor in respect of amounts in relation to which the conditions pursuant to clause 8(a) are fulfilled, the relevant German Guarantor’s liability shall be limited, in respect of that demand only:
(1) if the value of that German Guarantor’s Net Assets is greater than its stated share capital at the time of the demand, to that amount such that after payment of that amount the value of the German Guarantor’s Net Assets is not less than its stated share capital (Stammkapital); or
(2) if the value of its Net Assets is lower than its stated share capital at the time of the demand, to nil, for the purpose of not affecting its assets which are required for the obligatory preservation of its stated share capital according to §§ 30, 31 German GmbH-Act (GmbH-Gesetz).
(c) In this clause 8, Net Assets (Nettovermögen) means the sum of the German Guarantor’s assets pursuant to Section 266 para. 2 A, B and C of the German Commercial Code (Handelsgesetzbuch), less the sum of the German Guarantor’s liabilities pursuant to Section 266, paragraphs 3 B, C (but disregarding, for the avoidance of doubt, the obligations under clause 7 of this deed) D and E of the German Commercial Code (Handelsgesetzbuch) each as shown in a balance sheet as of the date on which the enforcement of the German Guarantee is sought (Stichtagsbilanz) whereby the balance sheet shall be adjusted as set out under clause 8(d).
(d) For the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows:
(1) loans provided to the German Guarantor shall be disregarded, if and to the extent such loans have been made available, ...
German Guarantors. Each of the Lenders, by its acceptance of the benefits hereof, agrees to release (or to instruct the Administrative Agent to release) proceeds from the enforcement of this Guaranty if and to the extent that the application of proceeds towards the Obligations would otherwise lead to the situation that, if a Guarantor is organized as a GmbH & Co. KG. (a “German Guarantor”) under the laws of the Federal Republic of Germany, its general partner does not have sufficient assets to maintain its stated share capital (Stammkapital) provided that for the purposes of the calculation of the amount to be released (if any) the following balance sheet items shall be adjusted as follows:
(A) the amount of any increase of stated share capital after the date hereof that has been effected without the prior written consent of the Administrative Agent (acting on behalf of the Lenders) shall be deducted from the stated share capital; and
(B) loans provided to the such German Guarantor by the Borrower or any of its subsidiaries as far as such loans are subordinated or qualified under § 32a GmbHG (German Limited Liability Companies Act) shall be disregarded.
German Guarantors. (a) The Guarantee of any Subsidiary Guarantor incorporated or formed under the laws of Germany (a “German Guarantor”) shall not be enforceable as long as such German Guarantor is incorporated in Germany as a limited liability company (Gesellschaft mit beschränkter Haftung - GmbH) (a “German Guarantor”) if and to the extent that such Guarantee secures liabilities of an affiliated company within the meaning of Section 15 et seq. of the German Stock Corporation Act (Aktiengesetz) of that German Guarantor (other than the German Guarantor’s Subsidiaries) (an “Up-Stream or Cross-Stream Security”) and if and to the extent that such enforcement would cause such German Guarantor’s Net Assets to be reduced below the amount of its registered share capital (Stammkapital), which is protected by section 30 and 31 of the German Limited Liability Companies Act (GmbHG), or if such German Guarantor’s Net Assets are below the amount of the registered share capital, cause such amount to be further reduced.
German Guarantors. Entity Jurisdiction
German Guarantors. The obligations created by this Agreement are limited to the extent that by performing such obligations, each Guarantor incorporated in German would be in breach of German non-dispositive law, in particular any laws on unlawful financial assistance or insolvency laws.
German Guarantors. (a) Each of the Finance Parties agrees not to enforce the guarantee granted under this Agreement against any Guarantor irrespective of whether the relevant Guarantor is at the time of enforcement incorporated as
(i) a limited liability company (Gesellschaft mit beschränkter Haftung) (a German GmbH Guarantor), or
(ii) a limited partnership (Kommanditgesellschaft) of which the general partner (Komplementär) is a limited liability company (a
German Guarantors the liability of a Guarantor under this Clause must not exceed the maximum amount able to be provided by that Guarantor having regard to generally applicable laws in its jurisdiction of incorporation; and
German Guarantors. The representations and warranties and undertakings in Clause 20.20 (Anti Terrorism laws), Clause 20.22 (Sanctions, Anti-Corruption and other laws), Clause 23.18 (Anti-Terrorism Laws), Clause 23.20 (Use of proceeds and Sanctions) and Clause 23.21 (Anti-Corruption) given by any German Guarantor are made only to the extent that they do not result in a violation of or conflict with Section 7 of the German Foreign Trade and Payments Regulation (Außenwirtschaftsverordnung). The representations and warranties and undertakings in Clause 20.20 (AntiTerrorism Laws), Clause 20.22 (Sanctions, Anti-Corruption and other laws), Clause 23.18 (Anti-Terrorism Laws), Clause 23.20 (Use of proceeds and Sanctions) and Clause 23.21 (Anti-Corruption) given by such German Guarantor to any Lender resident in Germany (Inländer) within the meaning of section 2 paragraph 15 of the German Foreign Trade Act (Außenwirtschaftsgesetz) are given only to the extent that giving such representations and warranties or undertakings to the benefit of any Lender resident in Germany (Inländer) within the meaning of Section 2 paragraph 15 of the German Foreign Trade Act (Außenwirtschaftsgesetz) would be permitted for such Lender pursuant to section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung).
German Guarantors. (A) Each of the Lenders, by its acceptance of the benefits hereof, agree (and will instruct the Administrative Agent accordingly) not to enforce this Guaranty if and to the extent that this Guaranty shall be enforced for debt owed by a direct or indirect holding company of the German Guarantor or by a direct or indirect subsidiary of such holding company and the application of proceeds towards the Obligations would lead to the situation that, if a Guarantor is organized as a GmbH & Co. KG. (a “German Guarantor”) under the laws of the Federal Republic of Germany, the Net Assets of its general partner would fall below the registered share capital (Stammkapital) of the general partner or, if the Net Assets of the general partner are already below the registered share capital of the general partner, such amount would be further reduced, and thereby violate the capital maintenance requirement as set out in Sections 30 et. seq. GmbHG (Gesetz betreffend die Gesellschaften mit beschraenkter Haftung).
(B) Section 19(A) shall only apply if:
