Limitations for German Guarantors. (i) Notwithstanding any other provision of this Indenture, each Holder, by its acceptance of the Notes, and the Trustee (and its successors and assigns) agree not to enforce the Note Guarantee granted under this Article 11 against any Guarantor which is a German limited liability company (Gesellschaft mit beschränkter Haftung—GmbH) or a limited partnership (Kommanditgesellschaft) with a GmbH as its sole general partner (Komplementär) (GmbH & Co. KG) (the “Affected German Guarantor”), to the extent that payment under the Note Guarantee would:
Limitations for German Guarantors. (a) To the extent that the guarantee created under this Guaranty or any other obligation which qualifies as a “payment” (Zahlung) within the meaning of Sections 30, 31 of the German Limited Liabilities Company Act (GmbHG) (the “GmbH-Act”) (the “Guarantee”) is granted or incurred by a Guarantor incorporated in Germany as a limited liability company (GmbH) (each a “German Guarantor” 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 shareholders 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.
Limitations for German Guarantors. (a) Without prejudice to Clause 22.5 (a)(ii) (Additional Guarantors) the liability of any Guarantor organised as a stock corporation (Aktiengesellschaft) under German law (the German AG Guarantor) under the guarantee provided by such Guarantor under this Clause 19 (Guarantee) shall, if and to the extent such German AG Guarantor guarantees obligations of its direct or indirect shareholder(s) or any of their Affiliates (other than the Subsidiaries of the German AG Guarantor) under the Finance Documents, be limited to an amount equal to the aggregate of all amounts borrowed by such shareholder(s) or any of their Affiliates (other than the Subsidiaries of the German AG Guarantor) under the Finance Documents which has been made available (by way of a loan or otherwise) directly or indirectly to such German AG Guarantor and/or any of its Subsidiaries and which has not yet been repaid by such German AG Guarantor and/or its Subsidiaries on the date on which the payment demand under the guarantee provided by the relevant German AG Guarantor under this Clause 19 (Guarantee) is made.
Limitations for German Guarantors. The right to enforce any guarantee, indemnity or liability obligation under or in connection with this Indenture of any Guarantor incorporated in the form of a limited liability company (GmbH) or a limited partnership (GmbH & Co. KG) in accordance with the laws of the Federal Republic of Germany (a ‟German Guarantor”) shall, to the extent that such obligation pertains to liabilities of an affiliated company (verbundenes Unternehmen) of the relevant German Guarantor within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (other than the relevant German Guarantor's subsidiaries), at all times be limited to an amount equal to (i) in case of the relevant German Guarantor being incorporated in form of a limited liability company, such German Guarantor’s net assets, being its total assets less its liabilities (including liability reserves (Rückstellungen)) less its registered share capital (Stammkapital), and (ii) in case of the relevant German Guarantor being incorporated in form of a limited partnership, such German Guarantor's general partner's net assets, being such general partner's total assets less its liabilities (including liability reserves (Rückstellungen)) less its registered share capital (Stammkapital) (the “Net Assets”) provided that, to the extent legally permitted, for the purposes of the calculation of the Net Assets the following balance sheet items shall be taken into consideration as follows:
Limitations for German Guarantors. (a) Each Finance Party agrees that the enforcement of the guarantee and indemnity pursuant to this Clause 19, and any Security provided by a Guarantor pursuant to the terms of the Security Documents, other than in respect of Loans made available to such Guarantor or to a Subsidiary of such Guarantor by a Lender, or by another Obligor from the proceeds of Loans, shall be limited, in relation to any Obligor (other than the Company) which is a German limited liability company (Gesellschaft mit beschrankter Haftung - GmbH) (a "GERMAN OBLIGOR"), to the extent that payment under that guarantee and indemnity, or the enforcement of the Security, would cause the higher of (i) the German Obligor's net assets (including, for the avoidance of doubt, the amount corresponding to such German Obligor's registered share capital (Stammkapital)) as per the date of this Agreement minus 10% (the "BASE NET ASSETS") and (ii) the German Obligor's net assets (including, for the avoidance of doubt, the amount corresponding to such German Obligor's Stammkapital) as per the end of the calendar month preceding the date of enforcement of this guarantee and indemnity or of any Security (the "CURRENT NET ASSETS") to fall below its Stammkapital PROVIDED THAT for the purposes of the calculation of the Base Net Assets and the Current Net Assets the following balance sheet items shall be adjusted as follows:
Limitations for German Guarantors. (a) The restrictions in this Section 17.16 shall apply to any guarantee and indemnity (hereinafter the “Guarantee”) granted by a Guarantor incorporated under the laws of Germany as a limited liability company (“GmbH”) (a “German Guarantor”) to secure liabilities of its direct or indirect shareholder(s) (upstream) or an entity affiliated with such shareholder (verbundenes Unternehmen) within the meaning of section 15 et seq. of the German Stock Corporation Act (Aktiengesetz) (cross-stream) (excluding, for the avoidance of doubt purposes any direct or indirect Subsidiary of such Guarantor). It is understood and agreed that the limitations set forth in this Section 17.16 shall also apply to any German Obligor’s obligations under the Guaranty to repay any amounts owed under Sections 13.01, 13.02 and 14.05 which are not attributable to such Obligor.
Limitations for German Guarantors. (a) To the extent that the guarantee created under this Clause 18 (the "Guarantee") is granted by a Guarantor incorporated in Germany as a limited liability company (GmbH) (each a "German Guarantor") and the Guarantee of the German Guarantor guarantees amounts which are owed by direct or indirect shareholders 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 paragraph (c) below. In relation to any other amounts guaranteed, the Guarantee of the German Guarantor remains unlimited.
Limitations for German Guarantors. The Finance Parties agree not to enforce the guarantee created hereunder by a Guarantor incorporated in Germany as a limited liability company (GmbH) (a “German GmbH Guarantor”) or established in Germany as a limited partnership (Kommanditgesellschaft) with a limited liability company as general partner (a “German GmbH & Co. KG Guarantor” together with any German GmbH Guarantor hereinafter referred to as “German Guarantor”) under this Clause 19 if and to the extent that that guarantee secures liabilities of any of the German Guarantor’s shareholders or an affiliated company (verbundenes Unternehmen) of any such shareholder within the meaning of Section 15 et seq. of the German Stock Corporation Act (Aktiengesetz) (other than the German Guarantor’s or, where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s Subsidiaries) and if and to the extent that such enforcement would (i) deprive the German Guarantor, or if applicable, its general partner, of the liquidity necessary to fulfil its financial liabilities to its creditors (a “Liquidity Impairment”) or (ii) lead to the situation in which such German GmbH Guarantor’s assets, or where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s assets (the calculation of which shall take into account the captions reflected in Section 266 subsection (2)A, B and C of the German Commercial Code (Handelsgesetzbuch)) less the sum of (A) the liabilities of the German GmbH Guarantor, or where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s liabilities (the calculation of which shall take into account the captions reflected in Section 266 sub section (3) B, C and D of the German Commercial Code), and (B) its respective stated share capital (Stammkapital) (the “Net Assets”)) are less than zero.
