GERMANY. (i) The obligations and liabilities of any Guarantor incorporated or established and existing as a German limited liability company (Gesellschaft mit beschränkter Haftung – GmbH) (each, a “German GmbH Guarantor”), shall be subject to the following limitations. To the extent that the Guaranteed Obligations include liabilities of such German GmbH Guarantor’s direct or indirect shareholder(s) (each, an “Up-stream Guaranty”) or its affiliated companies (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (other than Subsidiaries of that German GmbH Guarantor) (each, a “Cross-stream Guaranty”) (save for any guarantee of funds to the extent they (x) are on-lent and/or (y) replace or refinance funds which were on-lent in each case to that German GmbH Guarantor or its Subsidiaries and such amount on-lent is not returned), the guaranty created under this Article VII shall not be enforced against such German GmbH Guarantor at the time of the respective Payment Demand (as defined below) if and only to the extent that the German GmbH Guarantor demonstrates to the reasonable satisfaction of the Administrative Agent that the enforcement would have the effect of: (1) causing such German GmbH Guarantor’s Net Assets (as defined below) to be reduced below zero, or (2) if its Net Assets are already below zero, causing such amount to be further reduced, and thereby, in each case, affecting its assets required for the maintenance of its stated share capital (gezeichnetes Kapital) pursuant to Sections 30 and 31 of the German Limited Liability Company Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, “GmbHG”), as applicable at the time of enforcement. No reduction of the amount enforceable under this Article VII will prejudice the rights of the Administrative Agent to again enforce the guaranty created under this Article VII at a later time under this Agreement (subject always to the operation of the limitations set forth above at the time of such further enforcement). “Net Assets” means the applicable German GmbH Guarantor’s assets (section 266 sub-section (2) of the German Commercial Code (Handelsgesetzbuch) (“HGB”)) minus the aggregate of its liabilities (section 266 sub-section (3) B, C HGB (but disregarding, for the avoidance of doubt, any provisions in respect of the guaranty created under this Article VII), accruals and deferred tax (section 266 subsection (3) D, E HGB), its stated share capital (gezeichnetes Kapital) (section 266 subsection (3)A(I) HGB) and any amounts not available for distribution according to Section 268 subsection (8)
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Samples: Term Loan Agreement (Digital Realty Trust, L.P.), Global Senior Credit Agreement (Digital Realty Trust, L.P.), Term Loan Agreement (Digital Realty Trust, L.P.)
GERMANY. (i) The obligations and liabilities of any Guarantor incorporated or established and existing as a German limited liability company (Gesellschaft mit beschränkter Haftung – GmbH) (each, a “German GmbH Guarantor”), shall be subject to the following limitations. To the extent that the Guaranteed Obligations include liabilities of such German GmbH Guarantor’s direct or indirect shareholder(s) (each, an “Up-stream Up‑stream Guaranty”) or its affiliated companies (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (other than Subsidiaries of that German GmbH Guarantor) (each, a “Cross-stream Cross‑stream Guaranty”) (save for any guarantee of funds to the extent they (x) are on-lent on‑lent and/or (y) replace or refinance funds which were on-lent on‑lent in each case to that German GmbH Guarantor or its Subsidiaries and such amount on-lent on‑lent is not returned), the guaranty created under this Article VII shall not be enforced against such German GmbH Guarantor at the time of the respective Payment Demand (as defined below) if and only to the extent that the German GmbH Guarantor demonstrates to the reasonable satisfaction of the Administrative Agent that the enforcement would have the effect of: (1) causing such German GmbH Guarantor’s Net Assets (as defined below) to be reduced below zero, or (2) if its Net Assets are already below zero, causing such amount to be further reduced, and thereby, in each case, affecting its assets required for the maintenance of its stated share capital (gezeichnetes Kapital) pursuant to Sections 30 and 31 of the German Limited Liability Company Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, “GmbHG”), as applicable at the time of enforcement. No reduction of the amount enforceable under this Article VII will prejudice the rights of the Administrative Agent to again enforce the guaranty created under this Article VII at a later time under this Agreement (subject always to the operation of the limitations set forth above at the time of such further enforcement). “Net Assets” means the applicable German GmbH Guarantor’s assets (section 266 sub-section sub‑section (2) of the German Commercial Code (Handelsgesetzbuch) (“HGB”)) minus the aggregate of its liabilities (section 266 sub-section sub‑section (3) B, C HGB (but disregarding, for the avoidance of doubt, any provisions in respect of the guaranty created under this Article VII), accruals and deferred tax (section 266 subsection (3) D, E HGB), its stated share capital (gezeichnetes Kapital) (section 266 subsection (3)A(I) HGB) and any amounts not available for distribution according to Section 268 subsection (8)
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Samples: Credit Agreement (Digital Realty Trust, L.P.), Senior Credit Agreement (Digital Realty Trust, L.P.)
GERMANY. (iii) The obligations and liabilities of any Guarantor incorporated or established and existing as a German limited liability company (Gesellschaft mit beschränkter Haftung – GmbH) (each, a “German GmbH Guarantor”), shall be subject to the following limitations. To the extent that the Guaranteed Obligations include liabilities of such German GmbH Guarantor’s direct or indirect shareholder(s) (each, an “Up-stream Guaranty”) or its affiliated companies (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (other than Subsidiaries of that German GmbH Guarantor) (each, a “Cross-stream Guaranty”) (save for any guarantee of funds to the extent they (x) are on-lent and/or (y) replace or refinance funds which were on-lent in each case to that German GmbH Guarantor or its Subsidiaries and such amount on-lent on‑lent is not returned), the guaranty created under this Article VII shall not be enforced against such German GmbH Guarantor at the time of the respective Payment Demand (as defined below) if and only to the extent that the German GmbH Guarantor demonstrates to the reasonable satisfaction of the Administrative Agent that the enforcement would have the effect of: (1) causing such German GmbH Guarantor’s Net Assets (as defined below) to be reduced below zero, or (2) if its Net Assets are already below zero, causing such amount to be further reduced, and thereby, in each case, affecting its assets required for the maintenance of its stated share capital (gezeichnetes Kapital) pursuant to Sections 30 and 31 of the German Limited Liability Company Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, “GmbHG”), as applicable at the time of enforcement. No reduction of the amount enforceable under this Article VII will prejudice the rights of the Administrative Agent to again enforce the guaranty created under this Article VII at a later time under this Agreement (subject always to the operation of the limitations set forth above at the time of such further enforcement). “Net Assets” means the applicable German GmbH Guarantor’s assets (section 266 sub-section (2) of the German Commercial Code (Handelsgesetzbuch) (“HGB”)) minus the aggregate of its liabilities (section 266 sub-section (3) B, C HGB (but disregarding, for the avoidance of doubt, any provisions in respect of the guaranty created under this Article VII), accruals and deferred tax (section 266 subsection (3) D, E HGB), its stated share capital (gezeichnetes Kapital) (section 266 subsection (3)A(I) HGB) and any amounts not available for 98 Digital Realty - Term Loan Agreement distribution according to Section 268 subsection (8)8) HGB. The Net Assets shall be determined in accordance with the generally accepted accounting principles in Germany consistently applied by the applicable German GmbH Guarantor in preparing its unconsolidated balance sheet (Jahresabschluss according to section 42 GmbHG and sections 242, 264 HGB) in the previous financial years, but for the purposes of the calculation of the Net Assets the following balance sheet items shall be adjusted as follows: (x) the amount of any increase of the stated share capital (Erhöhungen des gezeichneten Kapitals) after the date of this Agreement shall be deducted from the stated share capital unless permitted under the Loan Documents or approved by the Administrative Agent); (y) loans received by, and other contractual liabilities of, the applicable German GmbH Guarantor which are subordinated within the meaning of section 39 subsection 1 No. 5 or section 39 subsection 2 of the German Insolvency Code (Insolvenzordnung) (contractually or by law) shall be disregarded; and (z) loans and other contractual liabilities incurred by the applicable German GmbH Guarantor in violation of the provisions of this Agreement or any other Loan Document shall be disregarded.
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GERMANY. (i)
(i) The obligations and liabilities of any Guarantor incorporated or established and existing as a German limited liability company (Gesellschaft mit beschränkter Haftung – GmbH) (each, a “German GmbH Guarantor”), shall be subject to the following limitations. To the extent that the Guaranteed Obligations include liabilities of such German GmbH Guarantor’s direct or indirect shareholder(s) (each, an “Up-stream Guaranty”) or its affiliated companies (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (other than Subsidiaries of that German GmbH Guarantor) (each, a “Cross-stream Guaranty”) (save for any guarantee of funds to the extent they (x) are on-lent and/or (y) replace or refinance funds which were on-lent in each case to that German GmbH Guarantor or its Subsidiaries and such amount on-lent is not returned), the guaranty created under this Article VII shall not be enforced against such German GmbH Guarantor at the time of the respective Payment Demand (as defined below) if and only to the extent that the German GmbH Guarantor demonstrates to the reasonable satisfaction of the Administrative Agent that the enforcement would have the effect of: (1) causing such German GmbH Guarantor’s Net Assets (as defined below) to be reduced below zero, or (2) if its Net Assets are already below zero, causing such amount to be further reduced, and thereby, in each case, affecting its assets required for the maintenance of its stated share capital (gezeichnetes Kapital) pursuant to Sections 30 and 31 of the German Limited Liability Company Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, “GmbHG”), as applicable at the time of enforcement. No reduction of the amount enforceable under this Article VII will prejudice the rights of the Administrative Agent to again enforce the guaranty created under this Article VII at a later time under this Agreement (subject always to the operation of the limitations set forth above at the time of such further enforcement). “Net Assets” means the applicable German GmbH Guarantor’s assets (section 266 sub-section (2) of the German Commercial Code (Handelsgesetzbuch) (“HGB”)) minus the aggregate of its liabilities (section 266 sub-section (3) B, C HGB (but disregarding, for the avoidance of doubt, any provisions in respect of the guaranty created under this Article VII), accruals and deferred tax (section 266 subsection (3) D, E HGB), its stated share capital (gezeichnetes Kapital) (section 266 subsection (3)A(I) HGB) and any amounts not available for distribution according to Section 268 subsection (8)
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GERMANY. (i) The obligations Finance Parties may, other than in accordance with the procedure and the provisions set out in subparagraphs (ii) to (viii) below, not enforce any guarantee or other obligation incurred by any German Guarantor, if and to the extent that (y) such guarantee or obligation is an Up-Stream or Cross-Stream Guarantee in the meaning set out in subparagraph (vii) below and (z) the enforcement would cause the assets of the relevant German Guarantor (the calculation of which shall include all items set forth in Section 266(2) A, B and C of the German Commercial Code (Handelsgesetzbuch; the “HGB”)) less the liabilities of the relevant German Guarantor (the calculation of which shall include all items set forth in Section 266(3) B, C and D HGB, but shall, for the avoidance of doubt, exclude the liabilities under the guarantee) (the “Net Assets”) to be less than its registered share capital (Stammkapital) (Begründung einer Unterbilanz) or (if the Net Assets of the relevant German Guarantor are already less than its registered share capital) would cause such deficit to be increased (Vertiefung einer Unterbilanz). For the purpose of determining whether a limitation on the enforcement has occurred, any recourse claim (Rückgriffsanspruch) which the German Guarantor incorporated has, or established and existing would acquire against a shareholder of another member of the Group as a German limited liability company (Gesellschaft mit beschränkter Haftung – GmbH) (each, a “German GmbH Guarantor”)result of an enforcement of the guarantee, shall be subject taken into account to the following limitationsextent that such recourse claim is valuable (werthaltig) (“Recourse Claim”). To the extent that there is such Recourse Claim, no limitation on enforcement applies.
(ii) The following adjustments to balance sheet items shall be made for the Guaranteed Obligations include purposes of the calculation of the Net Assets (if any):
(A) the amount of any increase of stated share capital (Stammkapital) of that German Guarantor after the date hereof that has been effected without the prior written consent of the Agent shall be deducted from the stated share capital (Stammkapital);
(B) loans provided to the relevant German Guarantor by any member of the Group shall not be taken into account as liabilities as far as such loans are subordinated by law at least to the claims of the unsubordinated creditors of such German GmbH Guarantor’s direct or indirect shareholder(s;
(C) (each, an “Up-stream Guaranty”) or its affiliated companies (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (other than Subsidiaries of that German GmbH Guarantor) (each, a “Cross-stream Guaranty”) (save for any guarantee of funds to the extent they (x) are on-lent and/or (y) replace or refinance funds which were on-lent in each case to the enforcement would deprive that German GmbH Guarantor of the ability to fulfil its obligations to third parties (incurred, whether on a contingent or its Subsidiaries and such amount onnon-lent is not returned)contingent basis, the guaranty created under this Article VII shall not be enforced against such German GmbH Guarantor at the time of enforcement) or to continue its business (an “Impairment”), then, for the respective Payment Demand determination of Net Assets, the assets of that German Guarantor shall be valued at the lesser of their book value (Buchwert) and their realisation value assuming a negative prognosis for the business continuance (Liquidationswert bei negativer Fortführungsprognose);
(D) loans and other contractual liabilities incurred by that German Guarantor in violation of the provisions of any of the Finance Documents shall be disregarded; and
(E) the Net Assets shall in any event take into account the costs of an Auditor’s Determination (as defined below), either as a reduction of assets or an increase of liabilities.
(iii) if and only The relevant German Guarantor shall realise, to the extent that the German GmbH Guarantor demonstrates legally permitted and commercially reasonable (with regard to the reasonable satisfaction cost and effort involved), in a situation where it after the relevant enforcement would not have sufficient Net Assets to maintain its stated share capital, any and all of its assets that are shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of the Administrative assets, if the relevant asset is not necessary for that German Guarantor’s business (betriebsnotwendig). In addition, that German Guarantor shall take all other measures to avoid the enforcement of a guarantee causing an Impairment to the extent commercially justifiable (with regard to costs and efforts involved) and legally permitted.
(iv) Without prejudice to subparagraph (i) above, no later than five Business Days after receipt of notice from the Agent that it will enforce the enforcement would have guarantee granted by a German Guarantor (the effect of: “Enforcement Notice”), that German Guarantor shall pay to the Agent the amount of any Up-Stream or Cross-Stream Guarantee in the meaning set out in subparagraph (1vii) below which can be enforced without causing such German GmbH Guarantor’s the Net Assets (as defined below) of that German Guarantor to be reduced fall below zero, or (2) if its Net Assets are already below zero, causing such amount to be further reduced, and thereby, in each case, affecting its assets required for the maintenance of its stated share capital (gezeichnetes Kapitalthe “Recovery Amount”), based on the registered share capital and amount of Net Assets shown in the most recent balance sheet or interim balance sheet of that German Guarantor (a copy of such balance sheet to be made available to the Agent within five Business Days of that German Guarantor’s receipt of an Enforcement Notice), or such lower or higher amount as the managing directors of the relevant German Guarantor on behalf of that German Guarantor have confirmed in writing to the Agent within five Business Days of receipt of the Enforcement Notice as being (y) the Recovery Amount and/or (z) enforceable pursuant to Sections subparagraph (i) above.
(v) In addition, the relevant German Guarantor shall, not later than 20 Business Days after its receipt of an Enforcement Notice, obtain a determination by auditors of international standing and reputation appointed by that German Guarantor (the “Auditor’s Determination”) with the consent of the Agent (not to be unreasonably withheld) of (y) the Recovery Amount (such determination to take into account the balance sheet adjustments set out in subparagraph (ii) above) and (z) an estimate of the liabilities, damages, costs, fees and expenses reasonably expected to result from a liquidation of that German Guarantor (on the assumption that such enforcement would result in an Impairment), and that German Guarantor shall, not later than five Business Days after receipt of such Auditor’s Determination, pay to the Agent the additional amount (if any) by which the Recovery Amount determined in the Auditor’s Determination exceeds the amount (if any) paid to the Agent pursuant to subparagraph (iv) above.
(vi) If the Agent (acting on behalf of the Finance Parties) disagrees with an Auditor’s Determination, the Finance Parties shall be entitled to further pursue in court their payment claims under the guarantee granted by a German Guarantor (if any) in excess of the amounts paid or payable pursuant to subparagraphs (iv) and/or (v) above, by claiming in court that demanding payment under the guarantee against such German Guarantor does not violate the German provisions on maintenance of share capital as applicable from time to time, in particular sections 30 and 31 GmbH-Act. Notwithstanding the foregoing, and for the avoidance of doubt, no German Guarantor shall be obliged to pay any such amount on demand.
(vii) For the purpose of this Clause 18.10, “Up-Stream or Cross-Stream Guarantee” means, in relation to a German Guarantor, any guarantee or other security for the obligations or liabilities of a member of the Group that is not a direct or indirect Subsidiary of the relevant German Guarantor, other than to the extent (y) such guarantee or other security relates to obligations or liabilities of the relevant member of the Group which have been on lent to, or otherwise been passed on to, and have not been repaid by, the relevant German Guarantor or any of its Subsidiaries and (z) the amounts thus on-lent do not qualify as equity replacing (eigenkapitalersetzend).
(viii) The limitations set out in subparagraphs (i) to (vii) above shall not apply to any amounts payable by a German Guarantor to the extent a valid domination and/or profit and loss transfer agreement (Beherrschungs-und/oder Gewinnabführungsvertrag) is in place between the relevant German Guarantor and the entity to whose liabilities the enforcement relates, unless such payment would despite the existence of the relevant valid domination and/or profit and loss transfer agreement violate the capital maintenance requirements as set out in sections 30, 31 of the German Limited Liability Company Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, “GmbHG”as amended and applied by German courts from time to time), as applicable at the time of enforcement. No reduction of the amount enforceable under this Article VII will prejudice the rights of the Administrative Agent to again enforce the guaranty created under this Article VII at a later time under this Agreement (subject always to the operation of the limitations set forth above at the time of such further enforcement). “Net Assets” means the applicable German GmbH Guarantor’s assets (section 266 sub-section (2) of the German Commercial Code (Handelsgesetzbuch) (“HGB”)) minus the aggregate of its liabilities (section 266 sub-section (3) B, C HGB (but disregarding, for the avoidance of doubt, any provisions in respect of the guaranty created under this Article VII), accruals and deferred tax (section 266 subsection (3) D, E HGB), its stated share capital (gezeichnetes Kapital) (section 266 subsection (3)A(I) HGB) and any amounts not available for distribution according to Section 268 subsection (8).
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GERMANY. (i) The obligations and liabilities of any Guarantor incorporated or established and existing as a German limited liability company (Gesellschaft mit beschränkter Haftung – GmbH) (each, a “German GmbH Guarantor”), shall be subject to the following limitations. To the extent that the Guaranteed Obligations include liabilities guarantee created under this Clause 19 (the “Guarantee”) is granted by a Guarantor which is incorporated in Germany as a limited liability company (GmbH) (each a “German Guarantor”) and the Guarantee of such the German GmbH Guarantor’s Guarantor guarantees amounts which are owed by direct or indirect shareholder(s) (each, an “Up-stream Guaranty”) or its affiliated companies (verbundenes Unternehmen) within the meaning of section 15 shareholders of the German Stock Corporation Act (Aktiengesetz) (other than Guarantor or Subsidiaries of that such shareholders (with the exception of Subsidiaries the German GmbH Guarantor) (each, Guarantor is a “Cross-stream Guaranty”) (save for any guarantee of funds to the extent they (x) are on-lent and/or (y) replace direct or refinance funds which were on-lent in each case to that German GmbH Guarantor or its Subsidiaries and such amount on-lent is not returnedindirect shareholder of), the guaranty created under Guarantee of the German Guarantor shall be subject to certain limitations as set out in the following paragraphs of this Article VII clause. In relation to any other amounts guaranteed, the Guarantee of the German Guarantor remains unlimited.
(ii) Subject to sections (2) and (3) below, the Agent shall not be enforced against such German GmbH Guarantor at entitled to enforce the time of the respective Payment Demand (as defined below) if and only Guarantee to the extent that the German GmbH Guarantor demonstrates to the reasonable satisfaction of the Administrative Agent that the such enforcement would have has the effect of: :
(1A) causing such reducing the German GmbH Guarantor’s 's net assets (Nettovermögen) (the “Net Assets (as defined belowAssets”) to be reduced below zeroan amount less than its stated share capital (Stammkapital), or or
(2B) (if its Net Assets are already below zero, lower than its stated share capital) causing such amount to be further reduced, and thereby, in each case, affecting thereby affects its assets which are required for the maintenance obligatory preservation of its stated share capital according to §§ 30, 31 German GmbH-Act (gezeichnetes KapitalGmbH-Gesetz) pursuant to Sections 30 and 31 (the “GmbH-Act”) (“Limitation on Enforcement” or “Limitation Event”). For the purpose of determining whether a Limitation Event has occurred, any recourse claim (Rückgriffsanspruch) which the German Guarantor has, or would acquire against a shareholder or another member of the German Limited Liability Company Act Group as a result of the enforcement of the Guarantee, shall be taken into account to the extent that such recourse claim is valuable (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, werthaltig) (“GmbHGRecourse Claim”). To the extent that there is such Recourse Claim, as applicable at the time of enforcement. No reduction no Limitation on Enforcement applies.
(1) The value of the amount enforceable under this Article VII will prejudice Net Assets shall be determined in accordance with the rights of the Administrative Agent to again enforce the guaranty created under this Article VII at a later time under this Agreement (subject always to the operation of the limitations set forth above at the time of such further enforcement). “Net Assets” means the applicable German GmbH Guarantor’s assets (section 266 sub-section (2) provisions of the German Commercial Code (Handelsgesetzbuch) (the “HGB”)“) minus consistently applied by the aggregate of German Guarantor in preparing its liabilities unconsolidated balance sheets (section 266 subJahresabschluss according to § 42 GmbH-section (3) BAct, C HGB (but disregarding§§ 242, for the avoidance of doubt, any provisions in respect of the guaranty created under this Article VII), accruals and deferred tax (section 266 subsection (3) D, E HGB), its stated share capital (gezeichnetes Kapital) (section 266 subsection (3)A(I) 264 HGB) and any amounts not available for distribution according to Section 268 subsection (8)in the previous years, save that:
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