Common use of Limitations for German Guarantors Clause in Contracts

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. (a) For the purposes of the calculation of the Net Assets the following balance sheet items shall be adjusted as follows: (i) the amount of any increase of the German GmbH Guarantor’s or, where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s stated share capital after the date hereof (excluding any share increase of stated share capital permitted pursuant to any other agreement to which the Facility Agent and the relevant German Guarantor is a party) (aa) that has been effected without the prior written consent of the Facility Agent, (bb) that has been effected out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) or (cc) to the extent that it is not fully paid up, shall be deducted from the stated share capital; (ii) loans and other contractual liabilities incurred by the relevant German Guarantor in negligent or wilful violation of the provisions of this Agreement shall be disregarded. (b) In addition, each German Guarantor or, where the guarantor is a German GmbH & Co. KG Guarantor, such German GmbH & Co. KG Guarantor and also its general partner shall realise, to the extent legally permitted and, in respect of the relevant German Guarantor’s or as the case may be its general partner’s business, commercially justifiable, in a situation where such German GmbH Guarantor’s or, where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s (i) Net Assets are less than zero, 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 assets if the asset is not necessary for such German GmbH Guarantor’s or as the case may be its general partner’s business (betriebsnotwendig), or (ii) liquidity is not sufficient to fulfill its financial liabilities to its creditors, any and all of its assets if the relevant asset is not necessary for the relevant German Guarantor’s business (betriebsnotwendig). (c) For the purpose of the calculation of the Net Assets or the Liquidity Impairment and thus the enforceable amount, the relevant German Guarantor will, at its own cost and expense, deliver within 60 Business Days after receipt from the Facility Agent of a notice stating that the Facility Agent has become entitled to demand payment under the guarantee, to the Facility Agent an up to date balance sheet drawn up by a firm of auditors of international standard and repute together with a determination of the Net Assets or the Liquidity Impairment. Such balance sheet and determination of Net Assets or the Liquidity Impairment shall be prepared in accordance with accounting principles pursuant to the German Commercial Code and be based on the same principles that were applied when establishing the previous year’s balance sheet. The determination by the auditors (as set forth above, the “Auditors’ Determination”) pertaining to the relevant German Guarantor shall be up to date and in any event such Auditors’ Determination shall have been prepared as of a date no earlier than 45 Business Days prior to the date of the enforcement of the guarantee. (d) Should the relevant German Guarantor fail to deliver such balance sheet and/or determination of the Net Assets or the Liquidity Impairment, the Facility Agent shall be entitled to demand payment under the guarantee, without limitation. (e) The restrictions set out in paragraph (a) above in relation to a Liquidity Impairment shall cease to apply, if, at the time a demand for payment under the Guarantee is made against a German Guarantor insolvency proceedings (Insolvenzverfahren) have been commenced (Eröffhung des Insolvenzverfahrens). However, the restrictions set out in paragraph (a) of this Clause 19.14 in relation to a Liquidity Impairment shall come back into effect and shall apply if the commencement of insolvency proceedings is rejected for insufficiency of assets (Ablehnung der Insolvenzeröffnung xxxxxxx Xxxxx). (f) The limitation of the enforcement of guarantees granted by the German Guarantors set out in this Clause 19.14 shall apply mutatis mutandis to the enforcement of any liability of a German Guarantor under this Agreement. For the avoidance of doubt this Clause 19.14(f) does not operate to restrict the liability any German Guarantor may have in its capacity as a Borrower under this Agreement.

Limitations for German Guarantors. The (a) Each Finance Parties agree not to enforce Party agrees that the enforcement of the guarantee created hereunder and indemnity pursuant to this Clause 19, and any Security provided by a Guarantor incorporated pursuant to the terms of the Security Documents, other than in Germany as 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 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 "GERMAN OBLIGOR"), to the extent that payment under that guarantee secures liabilities of any and indemnity, or the enforcement of the German Guarantor’s shareholders or an affiliated company (verbundenes Unternehmen) Security, would cause the higher 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 GuarantorObligor's net assets (including, or if applicablefor the avoidance of doubt, its general partner, of the liquidity necessary amount corresponding 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 Obligor's registered share capital (Stammkapital)) as per the date of this Agreement minus 10% (the “Net Assets”)"BASE NET ASSETS") are less than zero. and (aii) For 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: (i) the amount of any increase of the Stammkapital of the relevant German GmbH Guarantor’s or, where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s stated share capital Obligor after the date hereof (excluding any share increase of stated share capital permitted pursuant to any other agreement to which the Facility Agent and the relevant German Guarantor is a party) (aa) that has been effected without the prior written consent of the Facility Agent, (bb) that has been effected out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) or (cc) to the extent that it is not fully paid up, this Agreement shall be deducted from the stated share capitalrelevant Stammkapital; (ii) loans and other contractual liabilities incurred by provided to the relevant German Guarantor Obligor (or to any direct or indirect Subsidiary of such German Obligor) by any member of the Group shall be disregarded if and to the extent such loans have been made from funds made available to a German Obligor pursuant to the terms of this Agreement, or are subordinated, or are considered subordinated pursuant to Sec. 32a GmbHG; and (iii) loans and other liabilities incurred in negligent or wilful violation of the provisions of this Agreement shall be disregarded. (b) In addition, each German Guarantor or, where the guarantor is a German GmbH & Co. KG Guarantor, such German GmbH & Co. KG Guarantor and also its general partner shall realise, to the extent legally permitted and, in respect of FURTHER PROVIDED THAT the relevant German Guarantor’s or as Obligor shall for the case may be its general partner’s business, commercially justifiable, in a situation where such German GmbH Guarantor’s or, purposes of the determination of the Base Net Assets and the Current Net Assets dispose of all assets where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s (i) Net Assets are less than zero, any and all of its relevant assets that are shown in the balance sheet of the German Obligor with a book value (Buchwert) that which is significantly lower than the market value of such assets. The above limitations shall not apply if following notification by a Finance Party of claims raised under the assets guarantee and indemnity pursuant to this Clause 19, or of the enforcement of Security by such Finance Party, the relevant German Obligor does not provide conclusive evidence, including in particular interim financial statements up to the end of the last completed calendar month (which shall be audited if reasonably requested by the asset Facility Agent), within twenty five (25) days after the date of such notification, or if after receipt of such unaudited statements notification is given to the relevant German Obligor to provide audited financial statements up to the end of that same calendar month and such audited financial statements are not necessary provided within fifty (50) days after the date of such notification. (b) Each German Obligor may at any time request by giving written notice to the Facility Agent that the amount of the Base Net Assets relevant for the purpose of Clause 19.9 (a) is reduced to an amount (the "REDUCED AMOUNT") corresponding to the amount of such German GmbH Guarantor’s Obligor's actual net assets (to be determined as set out in para. (a) above), less or plus, as the case may be its general partner’s business (betriebsnotwendig), or (ii) liquidity is not sufficient to fulfill its financial liabilities to its creditorsbe, any and all decrease or increase to be reasonably expected in the course of its assets if a period of one Month from the relevant asset is not necessary for date of receipt by the relevant German Guarantor’s business (betriebsnotwendig). (c) For the purpose Facility Agent of the calculation of notice (the Net Assets or the Liquidity Impairment and thus the enforceable amount"NOTICE PERIOD"). Together with any such written request, the relevant German Guarantor will, at its own cost and expense, deliver within 60 Business Days after receipt from Obligor shall provide the Facility Agent with reasonable evidence (substantially applying the rules applicable for setting up a statement of a notice stating that overindebtedness ("{U"}berschuldungsstatus")) showing the German Obligor's net assets position (to be determined as set out in para. (a) above), and shall further provide the Facility Agent has become entitled with a written confirmation setting out the German Obligor's projected net assets as per the end of the Notice Period and stating the reasons therefor in reasonable detail. Upon the lapse of the Notice Period, the Base Net Assets shall be deemed to demand payment under the guarantee, correspond to the Facility Agent an up to date balance sheet drawn up by a firm of auditors of international standard and repute together with a determination of Reduced Amount, unless the Net Assets or the Liquidity Impairment. Such balance sheet and determination of Net Assets or the Liquidity Impairment shall be prepared Lenders have terminated this Agreement in accordance with accounting principles pursuant to the German Commercial Code provisions of this Agreement and be based on notified the same principles that were applied when establishing the previous year’s balance sheet. The determination by the auditors (as set forth above, the “Auditors’ Determination”) pertaining to the relevant respective German Guarantor shall be up to date and in any event thereof before the lapse of such Auditors’ Determination shall have been prepared as of a date no earlier than 45 Business Days prior to the date of the enforcement of the guaranteeNotice Period. (d) Should the relevant German Guarantor fail to deliver such balance sheet and/or determination of the Net Assets or the Liquidity Impairment, the Facility Agent shall be entitled to demand payment under the guarantee, without limitation. (e) The restrictions set out in paragraph (a) above in relation to a Liquidity Impairment shall cease to apply, if, at the time a demand for payment under the Guarantee is made against a German Guarantor insolvency proceedings (Insolvenzverfahren) have been commenced (Eröffhung des Insolvenzverfahrens). However, the restrictions set out in paragraph (a) of this Clause 19.14 in relation to a Liquidity Impairment shall come back into effect and shall apply if the commencement of insolvency proceedings is rejected for insufficiency of assets (Ablehnung der Insolvenzeröffnung xxxxxxx Xxxxx). (f) The limitation of the enforcement of guarantees granted by the German Guarantors set out in this Clause 19.14 shall apply mutatis mutandis to the enforcement of any liability of a German Guarantor under this Agreement. For the avoidance of doubt this Clause 19.14(f) does not operate to restrict the liability any German Guarantor may have in its capacity as a Borrower under this Agreement.

Limitations for German Guarantors. The (a) Each Finance Parties agree not to enforce Party agrees that the enforcement of the guarantee created hereunder and indemnity pursuant to this Clause 19, and any Security provided by a Guarantor incorporated pursuant to the terms of the Security Documents, other than in Germany as 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 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 "GERMAN OBLIGOR"), to the extent that payment under that guarantee secures liabilities of any and indemnity, or the enforcement of the German Guarantor’s shareholders or an affiliated company (verbundenes Unternehmen) Security, would cause the higher 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 GuarantorObligor's net assets (including, or if applicablefor the avoidance of doubt, its general partner, of the liquidity necessary amount corresponding 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 Obligor's registered share capital (Stammkapital)) as per 31 December 2003 minus 10 per cent. (the “Net Assets”)"BASE NET ASSETS") are less than zero. and (aii) For 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: (i) the amount of any increase of the German GmbH Guarantor’s or, where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s stated share capital after the date hereof (excluding any share increase Stammkapital of stated share capital permitted pursuant to any other agreement to which the Facility Agent and the relevant German Guarantor is a party) (aa) that has been effected without Obligor after the prior written consent of the Facility Agent, (bb) that has been effected out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) or (cc) to the extent that it is not fully paid up, Signing Date shall be deducted from the stated share capitalrelevant Stammkapital; (ii) loans and other contractual liabilities incurred by provided to the relevant German Guarantor Obligor (or to any direct or indirect Subsidiary of such German Obligor) by any Group Member shall be disregarded if and to the extent such loans have been made from funds made available to a German Obligor pursuant to the terms of this Agreement, or are subordinated, or are considered subordinated pursuant to Sec. 32a GmbHG; and (iii) loans and other liabilities incurred in negligent or wilful violation of the provisions of this Agreement shall be disregarded. (b) In addition, each German Guarantor or, where the guarantor is a German GmbH & Co. KG Guarantor, such German GmbH & Co. KG Guarantor and also its general partner shall realise, to the extent legally permitted and, in respect of FURTHER PROVIDED THAT the relevant German Guarantor’s or as Obligor shall for the case may be its general partner’s business, commercially justifiable, in a situation where such German GmbH Guarantor’s or, purposes of the determination of the Base Net Assets and the Current Net Assets dispose of all assets where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s (i) Net Assets are less than zero, any and all of its relevant assets that are shown in the balance sheet of the German Obligor with a book value (Buchwert) that which is significantly lower than the market value of such assets. The above limitations shall not apply if following notification by a Finance Party of claims raised under the assets if the asset is not necessary for such German GmbH Guarantor’s or as the case may be its general partner’s business (betriebsnotwendig)guarantee and indemnity pursuant to this Clause 19, or (ii) liquidity is not sufficient to fulfill its financial liabilities to its creditors, any and all of its assets if the relevant asset is not necessary for the relevant German Guarantor’s business (betriebsnotwendig). (c) For the purpose of the calculation enforcement of the Net Assets or the Liquidity Impairment and thus the enforceable amountSecurity by such Finance Party, the relevant German Guarantor willObligor does not provide conclusive evidence, at its own cost and expenseincluding in particular interim financial statements up to the end of the last completed calendar month (which shall be audited if reasonably requested by the Facility Agent), deliver within 60 Business Days twenty five (25) days after the date of such notification, or if after receipt from of such unaudited statements notification is given to the Facility Agent relevant German Obligor to provide audited financial statements up to the end of a that same calendar month and such audited financial statements are not provided within fifty (50) days after the date of such notification. (b) Each German Obligor may at any time request by giving written notice stating that the Facility Agent has become entitled to demand payment under the guarantee, to the Facility Agent an up to date balance sheet drawn up by a firm of auditors of international standard and repute together with a determination that the amount of the Base Net Assets or relevant for the Liquidity Impairment. Such balance sheet and determination purpose of Net Assets or Clause 19.9 (a) is reduced to an amount (the Liquidity Impairment shall be prepared in accordance with accounting principles pursuant "REDUCED AMOUNT") corresponding to the amount of such German Commercial Code and Obligor's actual net assets (to be based on the same principles that were applied when establishing the previous year’s balance sheet. The determination by the auditors (determined as set forth above, the “Auditors’ Determination”) pertaining to the relevant German Guarantor shall be up to date and in any event such Auditors’ Determination shall have been prepared as of a date no earlier than 45 Business Days prior to the date of the enforcement of the guarantee. (d) Should the relevant German Guarantor fail to deliver such balance sheet and/or determination of the Net Assets or the Liquidity Impairment, the Facility Agent shall be entitled to demand payment under the guarantee, without limitation. (e) The restrictions set out in paragraph (a) above above), less or plus, as the case may be, any decrease or increase to be reasonably expected in relation to the course of a Liquidity Impairment shall cease to apply, if, at period of one Month from the time a demand for payment under date of receipt by the Guarantee is made against a German Guarantor insolvency proceedings Facility Agent of the notice (Insolvenzverfahren) have been commenced (Eröffhung des Insolvenzverfahrensthe "NOTICE PERIOD"). HoweverTogether with any such written request, the restrictions relevant German Obligor shall provide the Facility Agent with reasonable evidence (substantially applying the rules applicable for setting up a statement of overindebtedness ("Uberschuldungsstatus")) showing the German Obligor's net assets position (to be determined as set out in paragraph (a) above), and shall further provide the Facility Agent with a written confirmation setting out the German Obligor's projected net assets as per the end of the Notice Period and stating the reasons therefor in reasonable detail. Upon the lapse of the Notice Period, the Base Net Assets shall be deemed to correspond to the Reduced Amount, unless the Lenders have terminated this Agreement in accordance with the provisions of this Clause 19.14 in relation to a Liquidity Impairment shall come back into effect Agreement and shall apply if notified the commencement of insolvency proceedings is rejected for insufficiency of assets (Ablehnung der Insolvenzeröffnung xxxxxxx Xxxxx). (f) The limitation of the enforcement of guarantees granted by the German Guarantors set out in this Clause 19.14 shall apply mutatis mutandis to the enforcement of any liability of a respective German Guarantor under this Agreement. For thereof before the avoidance lapse of doubt this Clause 19.14(f) does not operate to restrict the liability any German Guarantor may have in its capacity as a Borrower under this Agreementsuch Notice Period.

Limitations for German Guarantors. The Finance Parties agree not to enforce (a) To the extent that the guarantee created hereunder under this Clause 18 (the "Guarantee") is granted by a Guarantor incorporated in Germany as a limited liability company (GmbH) (each 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”") 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. (b) The provisions set out in this Clause 18 shall not apply to: (i) any amounts which correspond to funds that have been borrowed under this Clause 19 if Agreement and have been on-lent to, or otherwise been passed on to, the relevant German Guarantor or any of its Subsidiaries 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 amount is still outstanding at the meaning time the demand under the Guarantee is made against such German Guarantor 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 Guarantor by a Finance Party under the Finance Documents; and (ii) any amounts payable under the Guarantee at any time when a domination and/or profit and loss transfer agreement (in accordance with Section 15 et seq. 291 of the German Stock Corporation Act (Aktiengesetz)) (Beherrschungs- und Gewinnabführungsvertrag) is or becomes effective between the relevant German Guarantor and any direct or indirect shareholder of that German Guarantor or Subsidiary of such shareholder as dominating entity (beherrschendes Unternehmen) other than where despite the existence of such domination and/or profit and loss transfer agreement there would be a violation of Sections 30 or 31 of the German Guarantor’s or, where Limited Liability Company Act (GmbHG). (c) To the guarantor is extent that the demand under the Guarantee against a German GmbH & Co. KG Guarantor is made in respect of amounts in relation to which the conditions pursuant to paragraph ‎(a) above are fulfilled and to which paragraph (b) does not apply, the relevant German Guarantor, its general partner’s Subsidiaries's liability shall be limited as follows: (i) subject to paragraphs ‎(iii) and if and ‎(iv) below, each Finance Party shall not be entitled to enforce the Guarantee to the extent that the German Guarantor is able to demonstrate that such enforcement would has the effect of: (iA) deprive reducing the German Guarantor's net assets (Nettovermögen) (the "Net Assets") to an amount less than its stated share capital (Stammkapital); or (B) (if its Net Assets are already lower than its stated share capital) causing such amount to be further reduced, and thereby contravenes the obligatory preservation of its stated share capital according to Sections 30 or if applicable, its general partner, 31 of the liquidity necessary to fulfil its financial liabilities to its creditors German Limited Liabilities Company Act (a “Liquidity Impairment”) or "GmbHG"); (ii) lead to the situation value of the Net Assets shall be determined in which such German GmbH Guarantor’s assets, or where accordance with 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 provisions of the German Commercial Code (Handelsgesetzbuch) consistently applied by the German Guarantor in preparing its unconsolidated balance sheets (Jahresabschluss according to Section 42 GmbH-Act, Sections 242, 264 German Commercial Code (Handelsgesetzbuch)) less in the sum of previous years (A) subject to any permitted change in 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 CodeAccounting Principles), and (B) its respective stated share capital (Stammkapital) (the “Net Assets”)) are less than zero. (a) For the purposes of the calculation of the Net Assets the following balance sheet items shall be adjusted as followssave that: (iA) the amount of any increase of the German GmbH Guarantor’s or, where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s stated share capital (Stammkapital) of the German Guarantor registered after the original date hereof (excluding any share increase of stated share capital permitted pursuant to any other agreement to which the Facility Agent and the relevant German Guarantor is a party) (aa) that has been effected this Agreement without the prior written consent of the Facility Agent, Agent (bbacting on the instructions of the Majority Lenders) that has been effected out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) or (cc) to the extent that it is not fully paid up, shall be deducted from the relevant stated share capital; (iiB) loans provided to the relevant German Guarantor by any member of the Group shall be disregarded as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of such German Guarantor; and (C) loans and other contractual liabilities incurred by the relevant German Guarantor in negligent or wilful violation of the provisions of this Agreement shall be disregarded.; (biii) In addition, each German Guarantor or, where the guarantor is a German GmbH & Co. KG Guarantor, such German GmbH & Co. KG Guarantor limitations set out in sub-paragraph ‎(i) above shall only apply if and also its general partner shall realise, to the extent legally permitted andthat the managing director(s) (Geschäftsführer) on behalf of the respective German Guarantor have confirmed in writing to the Agent within 10 Business Days following the Agent's demand under the Guarantee to what extent the demanded payment fulfils the conditions pursuant to paragraph ‎(a) above and would cause its Net Assets to fall below its stated share capital (Stammkapital) or, if the Net Assets are already less than the stated share capital (Stammkapital), would cause such amount to be further reduced (the "Management Determination"); (iv) if the Agent (acting on behalf of the Finance Parties) disagrees with the Management Determination, the Agent shall nevertheless be entitled to enforce the Guarantee up to such amount which is undisputed between itself and the relevant German Guarantor in respect accordance with the provisions of paragraph ‎(iii) above. In relation to the amount which is disputed, the Agent and such German Guarantor shall instruct a firm of auditors of international standing and reputation to determine within 30 calendar days from the date the Agent has contested the Management Determination of the value of available Net Assets (the "Auditor's Determination"). If the Agent and the German Guarantor do not agree on the appointment of a joint auditor within 10 Business Days from the date the Agent (acting on behalf of the Finance Parties) has disputed the Management Determination, the Agent shall be entitled to appoint an auditor of international standing and reputation in its reasonable discretion. The amount determined as available in the Auditor's Determination shall be (except for manifest error) binding for all Parties. The costs of the Auditor's Determination shall be borne by the Company; (v) if, and to the extent that, the Guarantee has been enforced without regard to the limitation set forth in paragraph ‎(i) above because (A) the Management Determination was not delivered within the relevant time frame or (B) the amount of the available Net Assets calculated pursuant to the Auditor's Determination is lower than the amount stated in the Management Determination, the Finance Parties shall upon written demand of the relevant German Guarantor’s or as Guarantor to the Agent (on behalf of the Finance Parties) repay without undue delay any amount (if and to the extent already paid to the Finance Parties) in the case may be its general partner’s businessof ‎(A) above, commercially justifiable, in a situation where which is necessary to maintain such German GmbH Guarantor’s or's stated share capital (Stammkapital), where and in the guarantor case of ‎(B) above up to and including the amount calculated in the Auditor's Determination calculated as of the date the demand under the Guarantee was made and in accordance with paragraphs ‎(i) and ‎(ii) above, provided such demand for repayment is a German GmbH & Co. KG Guarantor, its general partner’s made to the Agent within 3 months (iAusschlussfrist) from the date the Guarantee was enforced; (vi) if pursuant to the Auditor's Determination the amount of the available Net Assets are less is higher than zerothat set out in the Management Determination, the relevant German Guarantor shall pay such amount to the Finance Parties within 10 Business Days upon request of the Agent (on behalf of the Finance Parties); (vii) if the German Guarantor intends to demonstrate that the enforcement of the Guarantee has led to one of the effects referred to in paragraph ‎(i) above, then the German Guarantor shall realise at arm's length terms to the extent necessary to satisfy the amounts demanded under this Guarantee any and all of its assets that are shown in the its balance sheet with a book value (Buchwert) that which is significantly lower than the their market value of and to the extent that such assets if the asset is not necessary for such German GmbH Guarantor’s or as the case may be its general partner’s business (betriebsnotwendig), or (ii) liquidity is not sufficient to fulfill its financial liabilities to its creditors, any and all of its assets if the relevant asset is are not necessary for the relevant German Guarantor’s 's business (nicht betriebsnotwendig).; and (cviii) For the purpose of the calculation of the Net Assets or the Liquidity Impairment and thus the enforceable amount, the relevant German Guarantor will, at its own cost and expense, deliver within 60 Business Days after receipt from the Facility Agent of a notice stating that the Facility Agent has become entitled to demand payment under the guarantee, to the Facility Agent an up to date balance sheet drawn up by a firm of auditors of international standard and repute together with a determination of the Net Assets or the Liquidity Impairment. Such balance sheet and determination of Net Assets or the Liquidity Impairment shall be prepared in accordance with accounting principles pursuant to the German Commercial Code and be based on the same principles that were applied when establishing the previous year’s balance sheet. The determination by the auditors (as set forth above, the “Auditors’ Determination”) pertaining to the relevant German Guarantor shall be up to date and in any event such Auditors’ Determination shall have been prepared as of a date no earlier than 45 Business Days prior to the date of the enforcement of the guarantee. (d) Should the relevant German Guarantor fail to deliver such balance sheet and/or determination of the Net Assets or the Liquidity Impairment, the Facility Agent shall be entitled to demand payment under the guarantee, without limitation. (e) The restrictions limitation set out in sub-paragraph (a‎(i) above in relation to a Liquidity Impairment shall cease to apply, if, at does not affect the time a demand for payment under the Guarantee is made against a German Guarantor insolvency proceedings (Insolvenzverfahren) have been commenced (Eröffhung des Insolvenzverfahrens). However, the restrictions set out in paragraph (a) of this Clause 19.14 in relation to a Liquidity Impairment shall come back into effect and shall apply if the commencement of insolvency proceedings is rejected for insufficiency of assets (Ablehnung der Insolvenzeröffnung xxxxxxx Xxxxx). (f) The limitation right of the enforcement of guarantees granted by Finance Parties to claim any outstanding amount again at a later point in time if and to the German Guarantors set out in extent that sub-paragraph ‎(i) above would allow this at that later point. This Clause 19.14 18.13 shall apply mutatis mutandis to if the enforcement of any liability of Guarantee is granted by a German Guarantor under this Agreement. For the avoidance of doubt this Clause 19.14(f) does not operate to restrict the liability any German Guarantor may have in its capacity incorporated as a Borrower under this Agreementlimited liability partnership (GmbH & Co. KG) in relation to the limited liability company as general partner (Komplementär) of such German Guarantor.

Limitations for German Guarantors. The Finance Parties agree not to enforce (a) To the extent that the guarantee created hereunder under this Clause 18 (the "Guarantee") is granted by a Guarantor incorporated in Germany as a limited liability company (GmbH) (each 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”") 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. (b) The provisions set out in this Clause 18 shall not apply to: (i) any amounts which correspond to funds that have been borrowed under this Clause 19 if Agreement and have been on-lent to, or otherwise been passed on to, the relevant German Guarantor or any of its Subsidiaries 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 amount is still outstanding at the meaning time the demand under the Guarantee is made against such German Guarantor 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 Guarantor by a Finance Party under the Finance Documents; and (ii) any amounts payable under the Guarantee at any time when a domination and/or profit and loss transfer agreement (in accordance with Section 15 et seq. 291 of the German Stock Corporation Act (Aktiengesetz)) (Beherrschungs- und Gewinnabführungsvertrag) is or becomes effective between the relevant German Guarantor and any direct or indirect shareholder of that German Guarantor or Subsidiary of such shareholder as dominating entity (beherrschendes Unternehmen) other than where despite the existence of such domination and/or profit and loss transfer agreement there would be a violation of Sections 30 or 31 of the German Guarantor’s or, where Limited Liability Company Act (GmbHG). (c) To the guarantor is extent that the demand under the Guarantee against a German GmbH & Co. KG Guarantor is made in respect of amounts in relation to which the conditions pursuant to paragraph (a) above are fulfilled and to which paragraph (b) does not apply, the relevant German Guarantor, its general partner’s Subsidiaries's liability shall be limited as follows: (i) subject to paragraphs (iii) and if and (iv) below, each Finance Party shall not be entitled to enforce the Guarantee to the extent that the German Guarantor is able to demonstrate that such enforcement would has the effect of: (iA) deprive reducing the German Guarantor's net assets (Nettovermögen) (the "Net Assets") to an amount less than its stated share capital (Stammkapital); or (B) (if its Net Assets are already lower than its stated share capital) causing such amount to be further reduced, and thereby contravenes the obligatory preservation of its stated share capital according to Sections 30 or if applicable, its general partner, 31 of the liquidity necessary to fulfil its financial liabilities to its creditors German Limited Liabilities Company Act (a “Liquidity Impairment”) or "GmbHG"); (ii) lead to the situation value of the Net Assets shall be determined in which such German GmbH Guarantor’s assets, or where accordance with 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 provisions of the German Commercial Code (Handelsgesetzbuch) consistently applied by the German Guarantor in preparing its unconsolidated balance sheets (Jahresabschluss according to Section 42 GmbH-Act, Sections 242, 264 German Commercial Code (Handelsgesetzbuch)) less in the sum of previous years (A) subject to any permitted change in 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 CodeAccounting Principles), and (B) its respective stated share capital (Stammkapital) (the “Net Assets”)) are less than zero. (a) For the purposes of the calculation of the Net Assets the following balance sheet items shall be adjusted as followssave that: (iA) the amount of any increase of the German GmbH Guarantor’s or, where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s stated share capital (Stammkapital) of the German Guarantor registered after the original date hereof (excluding any share increase of stated share capital permitted pursuant to any other agreement to which the Facility Agent and the relevant German Guarantor is a party) (aa) that has been effected this Agreement without the prior written consent of the Facility Agent, Agent (bbacting on the instructions of the Majority Lenders) that has been effected out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) or (cc) to the extent that it is not fully paid up, shall be deducted from the relevant stated share capital; (iiB) loans provided to the relevant German Guarantor by any member of the Group shall be disregarded as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of such German Guarantor; and (C) loans and other contractual liabilities incurred by the relevant German Guarantor in negligent or wilful violation of the provisions of this Agreement shall be disregarded.; (biii) In addition, each German Guarantor or, where the guarantor is a German GmbH & Co. KG Guarantor, such German GmbH & Co. KG Guarantor limitations set out in sub-paragraph (i) above shall only apply if and also its general partner shall realise, to the extent legally permitted and, in respect that the managing director(s) (Geschäftsführer) on behalf of the relevant respective German Guarantor’s or as Guarantor have confirmed in writing to the case may be Agent within 10 Business Days following the Agent's demand under the Guarantee to what extent the demanded payment fulfils the conditions pursuant to paragraph (a) above and would cause its general partner’s business, commercially justifiable, in a situation where such German GmbH Guarantor’s Net Assets to fall below its stated share capital (Stammkapital) or, where if the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s (i) Net Assets are already less than zerothe stated share capital (Stammkapital), any and all of its assets that are shown in would cause such amount to be further reduced (the balance sheet with a book value "Management Determination"); (Buchwertiv) that is significantly lower than if the market value Agent (acting on behalf of the assets if Finance Parties) disagrees with the asset Management Determination, the Agent shall nevertheless be entitled to enforce the Guarantee up to such amount which is not necessary for such German GmbH Guarantor’s or as the case may be its general partner’s business (betriebsnotwendig), or (ii) liquidity is not sufficient to fulfill its financial liabilities to its creditors, any undisputed between itself and all of its assets if the relevant asset is not necessary for the relevant German Guarantor’s business (betriebsnotwendig). (c) For the purpose of the calculation of the Net Assets or the Liquidity Impairment and thus the enforceable amount, the relevant German Guarantor will, at its own cost and expense, deliver within 60 Business Days after receipt from in accordance with the Facility Agent provisions of a notice stating that the Facility Agent has become entitled to demand payment under the guarantee, paragraph (iii) above. In relation to the Facility amount which is disputed, the Agent an up to date balance sheet drawn up by and such German Guarantor shall instruct a firm of auditors of international standard standing and repute together with a determination reputation to determine within 30 calendar days from the date the Agent has contested the Management Determination of the value of available Net Assets (the "Auditor's Determination"). If the Agent and the German Guarantor do not agree on the appointment of a joint auditor within 10 Business Days from the date the Agent (acting on behalf of the Finance Parties) has disputed the Management Determination, the Agent shall be entitled to appoint an auditor of international standing and reputation in its reasonable discretion. The amount determined as available in the Auditor's Determination shall be (except for manifest error) binding for all Parties. The costs of the Auditor's Determination shall be borne by the Company; (v) if, and to the extent that, the Guarantee has been enforced without regard to the limitation set forth in paragraph (i) above because (A) the Management Determination was not delivered within the relevant time frame or (B) the Liquidity Impairment. Such balance sheet and determination amount of the available Net Assets or calculated pursuant to the Liquidity Impairment Auditor's Determination is lower than the amount stated in the Management Determination, the Finance Parties shall be prepared upon written demand of the relevant German Guarantor to the Agent (on behalf of the Finance Parties) repay without undue delay any amount (if and to the extent already paid to the Finance Parties) in the case of (A) above, which is necessary to maintain such German Guarantor's stated share capital (Stammkapital), and in the case of (B) above up to and including the amount calculated in the Auditor's Determination calculated as of the date the demand under the Guarantee was made and in accordance with accounting principles paragraphs (i) and (ii) above, provided such demand for repayment is made to the Agent within 3 months (Ausschlussfrist) from the date the Guarantee was enforced; (vi) if pursuant to the German Commercial Code and be based on Auditor's Determination the same principles amount of the available Net Assets is higher than that were applied when establishing set out in the previous year’s balance sheet. The determination by the auditors (as set forth aboveManagement Determination, the “Auditors’ Determination”) pertaining to the relevant German Guarantor shall be up pay such amount to date and in any event such Auditors’ Determination shall have been prepared as of a date no earlier than 45 the Finance Parties within 10 Business Days prior to the date upon request of the enforcement Agent (on behalf of the guarantee. (d) Should the relevant German Guarantor fail to deliver such balance sheet and/or determination of the Net Assets or the Liquidity Impairment, the Facility Agent shall be entitled to demand payment under the guarantee, without limitation. (e) The restrictions set out in paragraph (a) above in relation to a Liquidity Impairment shall cease to apply, if, at the time a demand for payment under the Guarantee is made against a German Guarantor insolvency proceedings (Insolvenzverfahren) have been commenced (Eröffhung des InsolvenzverfahrensFinance Parties). However, the restrictions set out in paragraph (a) of this Clause 19.14 in relation to a Liquidity Impairment shall come back into effect and shall apply if the commencement of insolvency proceedings is rejected for insufficiency of assets (Ablehnung der Insolvenzeröffnung xxxxxxx Xxxxx). (f) The limitation of the enforcement of guarantees granted by the German Guarantors set out in this Clause 19.14 shall apply mutatis mutandis to the enforcement of any liability of a German Guarantor under this Agreement. For the avoidance of doubt this Clause 19.14(f) does not operate to restrict the liability any German Guarantor may have in its capacity as a Borrower under this Agreement.;