LIMITATIONS ON ENFORCEMENT. 7.1 The Pledgee shall be entitled to enforce the Pledge without limitation in respect of: (a) all and any amounts which are owed under the Credit Documents by the Pledgor itself or by any of its subsidiaries; and (b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”). 7.2 Besides an enforcement in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 above, the Pledgee shall not be entitled to enforce the Pledge against the Pledgor if and to the extent that: (a) the Pledge secures the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and (b) the enforcement would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent. 7.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that: (a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value; (b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and (c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is enforced. 7.4 The limitations set out in Clause 7.2 above shall only apply if and to the extent that: (a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or (b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 above, provided that the final sentence of Clause 7.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce the Pledge irrespective of the limitations set out in Clause 7.2 above. 7.5 If the Pledgee disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention to enforce the security created under this Agreement). 7.6 No reduction of the amount enforceable under this Clause 7 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 24 contracts
Samples: Account Pledge Agreement (RenPac Holdings Inc.), Account Pledge Agreement (RenPac Holdings Inc.), Account Pledge Agreement (RenPac Holdings Inc.)
LIMITATIONS ON ENFORCEMENT. 7.1 11.1 The Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor Assignor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent lent, borrowed or otherwise passed on to, or issued for the benefit of, the Pledgor Assignor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 11.2 Besides an enforcement in respect of the Unlimited Enforcement Amount applicable to the Assignor pursuant to Clause 7.1 11.1 above, the Pledgee Collateral Agent shall not be entitled to enforce the Pledge rights created under this Agreement against the Pledgor Assignor if and to the extent that:
(a) the Pledge secures rights created under this Agreement secure the obligations of a Grantor which is (x) a shareholder of the Pledgor Assignor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor Assignor (other than the Pledgor Assignor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the PledgorAssignor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the PledgorAssignor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 11.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the PledgorAssignor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the PledgorAssignor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the PledgorAssignor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor Assignor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the PledgorAssignor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor Assignor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor Assignor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor Assignor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, Assignor at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor Assignor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge security created under this Agreement is enforced.
7.4 11.4 The limitations set out in Clause 7.2 11.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce any of the Pledge rights created under this Agreement (the “Notice”), the Pledgor Assignor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is rights are up-stream or cross-stream security as described in Clause 7.2 11.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets Net Assets of the Pledgor Assignor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 11.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the PledgorAssignor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor Assignor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the PledgorAssignor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 11.3 above, provided that the final sentence of Clause 7.3 11.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor Assignor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger ordnungsgemäßer Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 11.3 above. If the Pledgor Assignor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement irrespective of the limitations set out in Clause 7.2 11.2 above.
7.5 11.5 If the Pledgee Collateral Agent disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge rights created under this Agreement up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 11.2 above. In relation to any additional amounts for which the Pledgor Assignor is liable under this Agreement, the Pledgee Collateral Agent shall be entitled to further pursue their claims (if any) and the Pledgor Assignor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee Collateral Agent has given notice of its intention to enforce the security created under this Agreement).
7.6 11.6 No reduction of the amount enforceable under this Clause 7 11 will prejudice the right of the Pledgee Collateral Agent to continue enforcing the Pledge rights created under this Agreement (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 10 contracts
Samples: Global Assignment Agreement (RenPac Holdings Inc.), Global Assignment Agreement (RenPac Holdings Inc.), Global Assignment Agreement (RenPac Holdings Inc.)
LIMITATIONS ON ENFORCEMENT. 7.1 The Pledgee Pledgees shall be entitled to enforce the Pledge Pledges without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 Besides an enforcement in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 above, the Pledgee Pledgees shall not be entitled to enforce the Pledge against the Pledgor if and to the extent that:
(a) the Pledge secures Pledges secure the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is Pledges are enforced.
7.4 The limitations set out in Clause 7.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce any of the Pledge Pledges (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is Pledges are up-stream or cross-stream security as described in Clause 7.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 above, provided that the final sentence of Clause 7.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee Pledgees shall be entitled to enforce the Pledge Pledges irrespective of the limitations set out in Clause 7.2 above.
7.5 If the Pledgee disagrees Pledgees (acting through the Collateral Agent) disagree with the Balance Sheet, it the Collateral Agent and the Pledgees shall be entitled to enforce the Pledge Pledges up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee Collateral Agent and the Pledgees shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has Pledgees have given notice of its their intention to enforce the security created under this Agreement).
7.6 No reduction of the amount enforceable under this Clause 7 will prejudice the right of the Pledgee Collateral Agent and the Pledgees to continue enforcing the Pledge Pledges (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 10 contracts
Samples: Account Pledge Agreement (RenPac Holdings Inc.), Account Pledge Agreement (RenPac Holdings Inc.), Account Pledge Agreement (RenPac Holdings Inc.)
LIMITATIONS ON ENFORCEMENT. 7.1 The Pledgee shall be entitled to enforce the Pledge without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 Besides an enforcement in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 above, the Pledgee shall not be entitled to enforce the Pledge against the Pledgor if and to the extent that:
(a) the Pledge secures the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation lead to a violation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 maintenance requirement as set out in Section 30 para 1 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2section (2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is enforced.
7.4 The limitations set out in Clause 7.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 above, provided that the final sentence of Clause 7.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce the Pledge irrespective of the limitations set out in Clause 7.2 above.
7.5 If the Pledgee disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention to enforce the security created under this Agreement).
7.6 No reduction of the amount enforceable under this Clause 7 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 9 contracts
Samples: Account Pledge Agreement, Account Pledge Agreement (Beverage Packaging Holdings (Luxembourg) v S.A.), Account Pledge Agreement (Beverage Packaging Holdings (Luxembourg) v S.A.)
LIMITATIONS ON ENFORCEMENT. 7.1 10.1 The Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor Transferor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Transferor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 10.2 Besides an enforcement in respect of the Unlimited Enforcement Amount applicable to the Transferor pursuant to Clause 7.1 10.1 above, the Pledgee Collateral Agent shall not be entitled to enforce the Pledge rights created under this Agreement against the Pledgor Transferor if and to the extent that:
(a) the Pledge secures rights created under this Agreement secure the obligations of a Grantor which is (x) a shareholder of the Pledgor Transferor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor Transferor (other than the Pledgor Transferor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the PledgorTransferor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the PledgorTransferor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 10.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the PledgorTransferor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the PledgorTransferor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the PledgorTransferor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor Transferor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the PledgorTransferor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor Transferor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor Transferor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor Transferor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, Transferor at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor Transferor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge security created under this Agreement is enforced.
7.4 10.4 The limitations set out in Clause 7.2 10.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce any of the Pledge rights created under this Agreement (the “Notice”), the Pledgor Transferor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is rights are up-stream or cross-stream security as described in Clause 7.2 10.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets Net Assets of the Pledgor Transferor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 10.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the PledgorTransferor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor Transferor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the PledgorTransferor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 10.3 above, provided that the final sentence of Clause 7.3 10.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor Transferor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger ordnungsgemäßer Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 10.3 above. If the Pledgor Transferor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement irrespective of the limitations set out in Clause 7.2 10.2 above.
7.5 10.5 If the Pledgee Collateral Agent disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge rights created under this Agreement up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 10.2 above. In relation to any additional amounts for which the Pledgor Transferor is liable under this Agreement, the Pledgee Collateral Agent shall be entitled to further pursue their claims (if any) and the Pledgor Transferor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee Collateral Agent has given notice of its intention to enforce the security created under this Agreement).
7.6 10.6 No reduction of the amount enforceable under this Clause 7 10 will prejudice the right of the Pledgee Collateral Agent to continue enforcing the Pledge rights created under this Agreement (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 3 contracts
Samples: Security Transfer Agreement (RenPac Holdings Inc.), Security Transfer Agreement (RenPac Holdings Inc.), Security Transfer Agreement (RenPac Holdings Inc.)
LIMITATIONS ON ENFORCEMENT. 7.1 8.1 The Pledgee shall be entitled to enforce apply proceeds of an enforcement of the Pledge Pledges towards satisfaction of the Obligations without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself itself, the Company or by any of its their subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Pledgor, the Company or any of its their subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “"Unlimited Enforcement Amount”Amount 11).
7.2 8.2 Besides an application of proceeds from an enforcement of the Pledges towards satisfaction of the Obligations in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 8.1 above, the Pledgee shall not be entitled to enforce apply proceeds of an enforcement of the Pledge against Pledges towards satisfaction of the Obligations but shall return to the Pledgor proceeds of an enforcement of the Pledges if and to the extent that:
(a) the Pledge secures Pledges secure the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (AktiengesetzAktiengesetz ) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the application of proceeds of an enforcement of the Pledges towards the Obligations would have the effect of (x) reducing the Pledgor’s 's net assets (ReinvermögenReinvermogen ) (the “"Net Assets”") to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation lead to a violation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 maintenance requirement as set out in Section 30 para 1 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter beschrankter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement 19245-3-4681-v0.7 - 16 - 70-4014510 l shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 8.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s 's assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2section (2) A, B and C of the German Commercial Code (HandelsgesetzbuchHandelsgesetzbuch ) less the aggregate amount of the Pledgor’s 's liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s 's business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger BuchführungGrundsatze ordnungsmaj3iger Buchfuhrung ) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (JahresbilanzJahresbilanz ). It being understood that the assets of the Pledgor will be assessed at liquidation values (LiquidationswerteLiquidationswerte ) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive FortführungsprognoseFortfuhrungsprognose ), in particular when the Pledge is Pledges are enforced.
7.4 8.4 The limitations set out in Clause 7.2 8.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge Pledges (the “"Notice”"), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 above, provided that the final sentence of Clause 7.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce the Pledge irrespective of the limitations set out in Clause 7.2 above.
7.5 If the Pledgee disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention to enforce the security created under this Agreement).
7.6 No reduction of the amount enforceable under this Clause 7 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.Agent
Appears in 2 contracts
Samples: Share Pledge Agreement (Reynolds Group Holdings LTD), Share Pledge Agreement (Reynolds Group Holdings LTD)
LIMITATIONS ON ENFORCEMENT. 7.1 The Pledgee shall be entitled to enforce the Pledge without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 Besides an enforcement in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 above, the Pledgee shall not be entitled to enforce the Pledge against the Pledgor if and to the extent that:
(a) the Pledge secures the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation lead to a violation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 maintenance requirement as set out in Section 30 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2section (2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is enforced.
7.4 The limitations set out in Clause 7.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 above, provided that the final sentence of Clause 7.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce the Pledge irrespective of the limitations set out in Clause 7.2 above.
7.5 If the Pledgee disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention to enforce the security created under this Agreement).
7.6 No reduction of the amount enforceable under this Clause 7 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 2 contracts
Samples: Account Pledge Agreement (Beverage Packaging Holdings (Luxembourg) v S.A.), Account Pledge Agreement (Beverage Packaging Holdings (Luxembourg) v S.A.)
LIMITATIONS ON ENFORCEMENT. 7.1 8.1 The Pledgee Pledgees shall be entitled to enforce apply proceeds of an enforcement of the Pledge Pledges towards satisfaction of the Obligations without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself itself, the Company or by any of its their subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Pledgor, the Company or any of its their subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 8.2 Besides an application of proceeds from an enforcement of the Pledges towards satisfaction of the Obligations in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 8.1 above, the Pledgee Pledgees shall not be entitled to enforce apply proceeds of an enforcement of the Pledge against Pledges towards satisfaction of the Obligations but shall return to the Pledgor proceeds of an enforcement of the Pledges if and to the extent that:
(a) the Pledge secures Pledges secure the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the application of proceeds of an enforcement of the Pledges towards the Obligations would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 8.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is Pledges are enforced.
7.4 8.4 The limitations set out in Clause 7.2 8.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce any of the Pledge Pledges (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is Pledges are up-stream or cross-stream security as described in Clause 7.2 8.2 above and (y) which amount of proceeds of an enforcement of the Pledges attributable to the enforcement of such up-stream or cross-stream security cannot be enforced applied towards satisfaction of the Obligations but would have to be returned to the Pledgor as it would otherwise cause the net assets Net Assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 8.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 8.3 above, provided that the final sentence of Clause 7.3 8.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 8.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee Pledgees shall be entitled to enforce apply the Pledge proceeds of an enforcement of the Pledges towards satisfaction of the Obligations irrespective of the limitations set out in Clause 7.2 8.2 above.
7.5 8.5 If the Pledgee disagrees Pledgees disagree with the Balance Sheet, it Sheet they shall be entitled to enforce apply proceeds of an enforcement of the Pledge Pledges in satisfaction of the Obligations up to the an amount which, according to the Balance Sheet, can be enforced applied in satisfaction of the Obligations in compliance with the limitations set out in Clause 7.2 8.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee Collateral Agent and the Pledgees shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has Pledgees have given notice of its intention that they intend to enforce the security created under this Agreement).
7.6 8.6 No reduction of the amount enforceable or applicable towards satisfaction of the Obligations under this Clause 7 8 will prejudice the right of the Pledgee Collateral Agent and the Pledgees to continue enforcing the Pledge Pledges (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 2 contracts
Samples: Share Pledge Agreement (RenPac Holdings Inc.), Share Pledge Agreement (RenPac Holdings Inc.)
LIMITATIONS ON ENFORCEMENT. 7.1 8.1 The Pledgee shall be entitled to enforce apply proceeds of an enforcement of the Pledge Pledges 1 towards satisfaction of the Obligations without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by Pledgor 1 itself, the Pledgor itself Company or by any of its their subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, Pledgor 1, the Pledgor Company or any of its their subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 8.2 Besides an application of proceeds from an enforcement of the Pledges 1 towards satisfaction of the Obligations in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 8.1 above, the Pledgee shall not be entitled to enforce apply proceeds of an enforcement of the Pledge against Pledges 1 towards satisfaction of the Obligations but shall return to Pledgor 1 proceeds of an enforcement of the Pledges 1 if and to the extent that:
(a) the Pledge secures Pledges 1 secure the obligations of a Grantor which is (x) a shareholder of the Pledgor 1 or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor 1 (other than the Pledgor 1 and its subsidiaries); and
(b) the application of proceeds of an enforcement of the Pledges 1 towards the Obligations would have the effect of (x) reducing the PledgorPledgor 1’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the PledgorPledgor 1’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 8.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the PledgorPledgor 1’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the PledgorPledgor 1’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the PledgorPledgor 1’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor 1 by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the PledgorPledgor 1; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor 1 in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor 1 in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor 1 will be assessed at liquidation values (Liquidationswerte) if the managing directors of the PledgorPledgor 1, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor 1 can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is Pledges 1 are enforced.
7.4 8.4 The limitations set out in Clause 7.2 8.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge Pledges 1 (the “Notice”), the Pledgor 1 has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is Pledges 1 are up-stream or cross-stream security as described in Clause 7.2 8.2 above and (y) which amount of proceeds of an enforcement of the Pledges 1 attributable to the enforcement of such up-stream or cross-stream security cannot be enforced applied towards satisfaction of the Obligations but would have to be returned to Pledgor 1 as it would otherwise cause the net assets Net Assets of the Pledgor 1 to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 8.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the PledgorPledgor 1’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor 1 an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the PledgorPledgor 1’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 8.3 above, provided that the final sentence of Clause 7.3 8.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor 1 should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 8.3 above. If the Pledgor 1 fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce apply the Pledge proceeds of an enforcement of the Pledges 1 towards satisfaction of the Obligations irrespective of the limitations set out in Clause 7.2 8.2 above.
7.5 8.5 If the Pledgee disagrees with the Balance Sheet, Sheet it shall be entitled to enforce apply proceeds of an enforcement of the Pledge Pledges 1 in satisfaction of the Obligations up to the an amount which, according to the Balance Sheet, can be enforced applied in satisfaction of the Obligations in compliance with the limitations set out in Clause 7.2 8.2 above. In relation to any additional amounts for which the Pledgor 1 is liable under this Agreement, the Pledgee shall be entitled to further pursue their its claims (if any) and the Pledgor 1 shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention that it intends to enforce the security created under this Agreement).
7.6 8.6 No reduction of the amount enforceable or applicable towards satisfaction of the Obligations under this Clause 7 8 will prejudice the right of the Pledgee to continue enforcing the Pledge Pledges 1 (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 1 contract
LIMITATIONS ON ENFORCEMENT. 7.1 8.1 The Pledgee shall be entitled to enforce apply proceeds of an enforcement of the Pledge towards satisfaction of the Obligations without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself itself, any of the Companies or by any of its their subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Pledgor, any of the Companies or any of its their subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “"Unlimited Enforcement Amount”").
7.2 8.2 Besides an application of proceeds from an enforcement of the Pledge towards satisfaction of the Obligations in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 8.1 above, the Pledgee shall not be entitled to enforce apply proceeds of an enforcement of the Pledge against towards satisfaction of the Obligations but shall return to the Pledgor proceeds of an enforcement of the Pledge if and to the extent that:
(a) the Pledge secures the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the application of proceeds of an enforcement of the Pledge towards the Obligations would have the effect of (x) reducing the Pledgor’s 's net assets (Reinvermögen) (the “"Net Assets”") to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation lead to a violation of the Pledgor’s stated share capital (Stammkapital) according to maintenance requirement as set out in section 30, 31 30 para 1 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 8.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s 's assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2section (2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s 's liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s 's business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is enforced.
7.4 8.4 The limitations set out in Clause 7.2 8.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge (the “"Notice”"), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 8.2 above and (y) which amount of proceeds of an enforcement of the Pledge attributable to the enforcement of such up-stream or cross-stream security cannot be enforced applied towards satisfaction of the Obligations but would have to be returned to the Pledgor as it would otherwise cause the net assets Net Assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 8.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “"Management Determination”") and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s 's stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “"Determining Auditors”") which shows the value of the Pledgor’s 's Net Assets (the “"Balance Sheet”"). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 8.3 above, provided that the final sentence of Clause 7.3 8.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 8.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce apply the proceeds of an enforcement of the Pledge towards satisfaction of the Obligations irrespective of the limitations set out in Clause 7.2 8.2 above.
7.5 8.5 If the Pledgee disagrees with the Balance Sheet, Sheet it shall be entitled to enforce apply proceeds of an enforcement of the Pledge in satisfaction of the Obligations up to the an amount which, according to the Balance Sheet, can be enforced applied in satisfaction of the Obligations in compliance with the limitations set out in Clause 7.2 8.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their its claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention that it intends to enforce the security created under this Agreement).
7.6 8.6 No reduction of the amount enforceable or applicable towards satisfaction of the Obligations under this Clause 7 8 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 1 contract
Samples: Share Pledge Agreement (Reynolds Group Holdings LTD)
LIMITATIONS ON ENFORCEMENT. 7.1 11.1 The Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement and realise the Collateral and/or the Licence Receivables without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor Transferor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, Documents in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Transferor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 11.2 Besides an enforcement in respect of the Unlimited Enforcement Amount applicable to the Transferor pursuant to Clause 7.1 11.1 above, the Pledgee Collateral Agent shall not be entitled to enforce this Agreement and realise the Pledge against Collateral and/or the Pledgor Licence Receivables if and to the extent that:
(a) the Pledge secures rights created hereunder secure the obligations of a Grantor which is (x) a shareholder of the Pledgor Transferor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor Transferor (other than the Pledgor Transferor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the PledgorTransferor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the PledgorTransferor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 11.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the PledgorTransferor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the PledgorTransferor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the PledgorTransferor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is enforced.
7.4 The limitations set out in Clause 7.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 above, provided that the final sentence of Clause 7.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce the Pledge irrespective of the limitations set out in Clause 7.2 above.
7.5 If the Pledgee disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention to enforce the security created under this Agreement).
7.6 No reduction of the amount enforceable under this Clause 7 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 1 contract
Samples: Security Transfer and Assignment Agreement (RenPac Holdings Inc.)
LIMITATIONS ON ENFORCEMENT. 7.1 The Pledgee shall be entitled to enforce the Pledge without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 Besides an enforcement in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 above, the Pledgee shall not be entitled to enforce the Pledge against the Pledgor if and to the extent that:
(a) the Pledge secures the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation lead to a violation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 maintenance requirements as set out in Section 30 para 1 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2section (2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is enforced.
7.4 The limitations set out in Clause 7.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 above, provided that the final sentence of Clause 7.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce the Pledge irrespective of the limitations set out in Clause 7.2 above.
7.5 If the Pledgee disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention to enforce the security created under this Agreement).
7.6 No reduction of the amount enforceable under this Clause 7 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 1 contract
Samples: Account Pledge Agreement (Beverage Packaging Holdings (Luxembourg) v S.A.)
LIMITATIONS ON ENFORCEMENT. 7.1 The Pledgee shall be entitled to enforce the Pledge without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 Besides an enforcement in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 above, the Pledgee shall not be entitled to enforce the Pledge against the Pledgor if and to the extent that:
(a) the Pledge secures the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation lead to a violation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 maintenance requirement as set out in Section 30 para 1 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is enforced.
7.4 The limitations set out in Clause 7.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 above, provided that the final sentence of Clause 7.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce the Pledge irrespective of the limitations set out in Clause 7.2 above.
7.5 If the Pledgee disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention to enforce the security created under this Agreement).
7.6 No reduction of the amount enforceable under this Clause 7 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 1 contract
Samples: Account Pledge Agreement (Beverage Packaging Holdings (Luxembourg) v S.A.)
LIMITATIONS ON ENFORCEMENT. 7.1 11.1 The Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor Assignor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent lent, borrowed or otherwise passed on to, or issued for the benefit of, the Pledgor Assignor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 11.2 Besides an enforcement in respect of the Unlimited Enforcement Amount applicable to the Assignor pursuant to Clause 7.1 11.1 above, the Pledgee Collateral Agent shall not be entitled to enforce the Pledge rights created under this Agreement against the Pledgor Assignor if and to the extent that:
(a) the Pledge secures rights created under this Agreement secure the obligations of a Grantor which is (x) a shareholder of the Pledgor Assignor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor Assignor (other than the Pledgor Assignor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) of the Assignor’s general partner (Komplementär) (the “Net Assets”) to an amount of less than its the Assignor’s general partner’s (Komplementär) stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its the Assignor’s general partner’s (Komplementär) stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the Pledgor’s stated share capital (Stammkapital) of the Assignor’s general partner (Komplementär) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 11.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgorassets of the Assignor’s assets general partner (Komplementär) (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgorliabilities of the Assignor’s liabilities general partner (Komplementär) (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the PledgorAssignor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor Assignor and/or its general partner (Komplementär) by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the PledgorAssignor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor Assignor and/or its general partner (Komplementär) in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor Assignor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor Assignor’s general partner (Komplementär) will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, Assignor’s general partner (Komplementär) at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor Assignor’s general partner (Komplementär) can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge security created under this Agreement is enforced.
7.4 11.4 The limitations set out in Clause 7.2 11.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce any of the Pledge rights created under this Agreement (the “Notice”), the Pledgor Assignor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is rights are up-stream or cross-stream security as described in Clause 7.2 11.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets Net Assets of the Pledgor Assignor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 11.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the PledgorAssignor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor Assignor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets of the Assignor’s general partner (Komplementär) (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 11.3 above, provided that the final sentence of Clause 7.3 11.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor Assignor’s general partner (Komplementär) should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger ordnungsgemäßer Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 11.3 above. If the Pledgor Assignor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement irrespective of the limitations set out in Clause 7.2 11.2 above.
7.5 11.5 If the Pledgee Collateral Agent disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge rights created under this Agreement up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 11.2 above. In relation to any additional amounts for which the Pledgor Assignor is liable under this Agreement, the Pledgee Collateral Agent shall be entitled to further pursue their claims (if any) and the Pledgor Assignor shall be entitled to prove that this amount is necessary for maintaining its the stated share capital of the Assignor’s general partner (Komplementär) (calculated as of the date the Pledgee Collateral Agent has given notice of its intention to enforce the security created under this Agreement).
7.6 11.6 No reduction of the amount enforceable under this Clause 7 11 will prejudice the right of the Pledgee Collateral Agent to continue enforcing the Pledge rights created under this Agreement (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
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LIMITATIONS ON ENFORCEMENT. 7.1 11.1 The Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement and realise the Collateral and/or the Licence Receivables without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor Transferor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, Documents in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Transferor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 11.2 Besides an enforcement in respect of the Unlimited Enforcement Amount applicable to the Transferor pursuant to Clause 7.1 11.1 above, the Pledgee Collateral Agent shall not be entitled to enforce this Agreement and realise the Pledge against Collateral and/or the Pledgor Licence Receivables if and to the extent that:
(a) the Pledge secures rights created hereunder secure the obligations of a Grantor which is (x) a shareholder of the Pledgor Transferor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor Transferor (other than the Pledgor Transferor and its subsidiaries); and
(b) the enforcement would have the effect of (x) reducing the PledgorTransferor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the PledgorTransferor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 11.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the PledgorTransferor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the PledgorTransferor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the PledgorTransferor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor Transferor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the PledgorTransferor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor Transferor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor Transferor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor Transferor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, Transferor at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor Transferor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge security created under this Agreement is enforced.
7.4 11.4 The limitations set out in Clause 7.2 11.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce any of its rights under this Agreement and realise the Pledge Collateral and/or the Licence Receivables (the “Notice”), the Pledgor Transferor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is rights are up-stream or cross-stream security as described in Clause 7.2 11.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets Net Assets of the Pledgor Transferor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 11.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the PledgorTransferor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor Transferor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the PledgorTransferor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 11.3 above, provided that the final sentence of Clause 7.3 11.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor Transferor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger ordnungsgemäßer Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 11.3 above. If the Pledgor Transferor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement irrespective of the limitations set out in Clause 7.2 11.2 above.
7.5 11.5 If the Pledgee Collateral Agent disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge rights created under this Agreement and realise the Collateral and the Licence Receivables up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 11.2 above. In relation to any additional amounts for which the Pledgor Transferor is liable under this Agreement, the Pledgee Collateral Agent shall be entitled to further pursue their claims (if any) and the Pledgor Transferor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee Collateral Agent has given notice of its intention to enforce the security created under this Agreement).
7.6 11.6 No reduction of the amount enforceable under this Clause 7 11 will prejudice the right of the Pledgee Collateral Agent to continue enforcing the Pledge rights created under this Agreement (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 1 contract
Samples: Security Transfer and Assignment Agreement (RenPac Holdings Inc.)
LIMITATIONS ON ENFORCEMENT. 7.1 8.1 The Pledgee shall be entitled to enforce apply proceeds of an enforcement of the Pledge towards satisfaction of the Obligations without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself itself, any of the Companies or by any of its their subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Pledgor, any of the Companies or any of its their subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 8.2 Besides an application of proceeds from an enforcement of the Pledge towards satisfaction of the Obligations in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 8.1 above, the Pledgee shall not be entitled to enforce apply proceeds of an enforcement of the Pledge against towards satisfaction of the Obligations but shall return to the Pledgor proceeds of an enforcement of the Pledge if and to the extent that:
(a) the Pledge secures the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the application of proceeds of an enforcement of the Pledge towards the Obligations would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 8.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is enforced.
7.4 8.4 The limitations set out in Clause 7.2 8.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 8.2 above and (y) which amount of proceeds of an enforcement of the Pledge attributable to the enforcement of such up-stream or cross-stream security cannot be enforced applied towards satisfaction of the Obligations but would have to be returned to the Pledgor as it would otherwise cause the net assets Net Assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 8.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 8.3 above, provided that the final sentence of Clause 7.3 8.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 8.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce apply the proceeds of an enforcement of the Pledge towards satisfaction of the Obligations irrespective of the limitations set out in Clause 7.2 8.2 above.
7.5 8.5 If the Pledgee disagrees with the Balance Sheet, Sheet it shall be entitled to enforce apply proceeds of an enforcement of the Pledge in satisfaction of the Obligations up to the an amount which, according to the Balance Sheet, can be enforced applied in satisfaction of the Obligations in compliance with the limitations set out in Clause 7.2 8.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their its claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention that it intends to enforce the security created under this Agreement).
7.6 8.6 No reduction of the amount enforceable or applicable towards satisfaction of the Obligations under this Clause 7 8 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 1 contract
LIMITATIONS ON ENFORCEMENT. 7.1 10.1 The Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor Transferor itself or by any of its subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Transferor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 10.2 Besides an enforcement in respect of the Unlimited Enforcement Amount applicable to the Transferor pursuant to Clause 7.1 10.1 above, the Pledgee Collateral Agent shall not be entitled to enforce the Pledge rights created under this Agreement against the Pledgor Transferor if and to the extent that:
(a) 10.2.1 the Pledge secures rights created under this Agreement secure the obligations of a Grantor which is (x) a shareholder of the Pledgor Transferor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor Transferor (other than the Pledgor Transferor and its subsidiaries); and
(b) 10.2.2 the enforcement would have the effect of (x) reducing the PledgorTransferor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the PledgorTransferor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 10.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the PledgorTransferor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the PledgorTransferor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that:
(a) 10.3.1 any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the PledgorTransferor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) 10.3.2 obligations under loans provided to the Pledgor Transferor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the PledgorTransferor; and
(c) 10.3.3 obligations under loans or other contractual liabilities incurred by the Pledgor Transferor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor Transferor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor Transferor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, Transferor at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor Transferor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge security created under this Agreement is enforced.
7.4 10.4 The limitations set out in Clause 7.2 10.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce any of the Pledge rights created under this Agreement (the “Notice”), the Pledgor Transferor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is rights are up-stream or cross-stream security as described in Clause 7.2 10.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets Net Assets of the Pledgor Transferor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 10.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the PledgorTransferor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor Transferor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the PledgorTransferor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 10.3 above, provided that the final sentence of Clause 7.3 10.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor Transferor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger ordnungsgemäßer Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 10.3 above. If the Pledgor Transferor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement irrespective of the limitations set out in Clause 7.2 10.2 above.
7.5 10.5 If the Pledgee Collateral Agent disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge rights created under this Agreement up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 10.2 above. In relation to any additional amounts for which the Pledgor Transferor is liable under this Agreement, the Pledgee Collateral Agent shall be entitled to further pursue their claims (if any) and the Pledgor Transferor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee Collateral Agent has given notice of its intention to enforce the security created under this Agreement).
7.6 10.6 No reduction of the amount enforceable under this Clause 7 10 will prejudice the right of the Pledgee Collateral Agent to continue enforcing the Pledge rights created under this Agreement (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
Appears in 1 contract
LIMITATIONS ON ENFORCEMENT. 7.1 11.1 The Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement without limitation in respect of:
(a) 11.1.1 all and any amounts which are owed under the Credit Documents by the Pledgor Assignor itself or by any of its subsidiaries; and
(b) 11.1.2 all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowedon- lent, on-lent borrowed or otherwise passed on to, or issued for the benefit of, the Pledgor Assignor or any of its subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time 19245-3-4551-v4.0 - 17 - 70-40145101 (in aggregate, the “"Unlimited Enforcement Amount”").
7.2 11.2 Besides an enforcement in respect of the Unlimited Enforcement Amount applicable to the Assignor pursuant to Clause 7.1 11.1 above, the Pledgee Collateral Agent shall not be entitled to enforce the Pledge rights created under this Agreement against the Pledgor Assignor if and to the extent that:
(a) 11.2.1 the Pledge secures rights created under this Agreement secure the obligations of a Grantor which is (x) a shareholder of the Pledgor Assignor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor Assignor (other than the Pledgor Assignor and its subsidiaries); and
(b) 11.2.2 the enforcement would have the effect of (x) reducing the Pledgor’s Assignor's net assets (Reinvermögen) (the “"Net Assets”") to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation lead to a violation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 maintenance requirement as set out in Section 30 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Administrative Agent.
7.3 11.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s Assignor's assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s Assignor's liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3) B, C and D of the German Commercial Code), save that:
(a) 11.3.1 any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s Assignor's business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) 11.3.2 obligations under loans provided to the Pledgor Assignor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the PledgorAssignor; andand 19245-3-4551-v4.0 - 18 - 70-40145101
(c) 11.3.3 obligations under loans or other contractual liabilities incurred by the Pledgor Assignor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor Assignor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor Assignor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, Assignor at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor Assignor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge security created under this Agreement is enforced.
7.4 11.4 The limitations set out in Clause 7.2 11.2 above shall only apply if and to the extent that:
(a) 11.4.1 without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce any of the Pledge rights created under this Agreement (the “"Notice”"), the Pledgor Assignor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is rights are up-stream or cross-stream security as described in Clause 7.2 11.2 above and (y) which amount of such up-stream or cross-stream security cannot be enforced as it would cause the net assets Net Assets of the Pledgor Assignor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 11.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “"Management Determination”") and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s Assignor's stated share capital; or
(b) 11.4.2 within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor Assignor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “"Determining Auditors”") which shows the value of the Pledgor’s Assignor's Net Assets (the “"Balance Sheet”"). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 11.3 above, provided that the final sentence of Clause 7.3 11.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor Assignor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting 19245-3-4551-v4.0 - 19 - 70-40145101 principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger ordnungsgemäßer Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 11.3 above. If the Pledgor Assignor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee Collateral Agent shall be entitled to enforce the Pledge rights created under this Agreement irrespective of the limitations set out in Clause 7.2 11.2 above.
7.5 11.5 If the Pledgee Collateral Agent disagrees with the Balance Sheet, it shall be entitled to enforce the Pledge rights created under this Agreement up to the amount which, according to the Balance Sheet, can be enforced in compliance with the limitations set out in Clause 7.2 11.2 above. In relation to any additional amounts for which the Pledgor Assignor is liable under this Agreement, the Pledgee Collateral Agent shall be entitled to further pursue their claims (if any) and the Pledgor Assignor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee Collateral Agent has given notice of its intention to enforce the security created under this Agreement).
7.6 . No reduction of the amount enforceable under this Clause 7 11 will prejudice the right of the Pledgee Collateral Agent to continue enforcing the Pledge rights created under this Agreement (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
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Samples: Global Assignment Agreement (Reynolds Group Holdings LTD)
LIMITATIONS ON ENFORCEMENT. 7.1 8.1 The Pledgee shall be entitled to enforce apply proceeds of an enforcement of the Pledge towards satisfaction of the Obligations without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself itself, the Company or by any of its their subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Pledgor, the Company or any of its their subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 8.2 Besides an application of proceeds from an enforcement of the Pledge towards satisfaction of the Obligations in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 8.1 above, the Pledgee shall not be entitled to enforce apply proceeds of an enforcement of the Pledge against towards satisfaction of the Obligations but shall return to the Pledgor proceeds of an enforcement of the Pledge if and to the extent that:
(a) the Pledge secures the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the application of proceeds of an enforcement of the Pledge towards the Obligations would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 8.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is enforced.
7.4 8.4 The limitations set out in Clause 7.2 8.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce the Pledge (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is up-stream or cross-stream security as described in Clause 7.2 8.2 above and (y) which amount of proceeds of an enforcement of the Pledge attributable to the enforcement of such up-stream or cross-stream security cannot be enforced applied towards satisfaction of the Obligations but would have to be returned to the Pledgor as it would otherwise cause the net assets Net Assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 8.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 8.3 above, provided that the final sentence of Clause 7.3 8.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 8.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee shall be entitled to enforce apply the proceeds of an enforcement of the Pledge towards satisfaction of the Obligations irrespective of the limitations set out in Clause 7.2 8.2 above.
7.5 8.5 If the Pledgee disagrees with the Balance Sheet, Sheet it shall be entitled to enforce apply proceeds of an enforcement of the Pledge in satisfaction of the Obligations up to the an amount which, according to the Balance Sheet, can be enforced applied in satisfaction of the Obligations in compliance with the limitations set out in Clause 7.2 8.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee shall be entitled to further pursue their its claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has given notice of its intention that it intends to enforce the security created under this Agreement).
7.6 8.6 No reduction of the amount enforceable or applicable towards satisfaction of the Obligations under this Clause 7 8 will prejudice the right of the Pledgee to continue enforcing the Pledge (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
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LIMITATIONS ON ENFORCEMENT. 7.1 8.1 The Pledgee Pledgees shall be entitled to enforce apply proceeds of an enforcement of the Pledge Pledges towards satisfaction of the Obligations without limitation in respect of:
(a) all and any amounts which are owed under the Credit Documents by the Pledgor itself itself, any of the Companies or by any of its their subsidiaries; and
(b) all and any amounts which correspond to funds that have been borrowed or otherwise raised under the Credit Documents, in each case to the extent borrowed, on-lent or otherwise passed on to, or issued for the benefit of, the Pledgor Pledgor, any of the Companies or any of its their subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time (in aggregate, the “Unlimited Enforcement Amount”).
7.2 8.2 Besides an application of proceeds from an enforcement of the Pledges towards satisfaction of the Obligations in respect of the Unlimited Enforcement Amount pursuant to Clause 7.1 8.1 above, the Pledgee Pledgees shall not be entitled to enforce apply proceeds of an enforcement of the Pledge against Pledges towards satisfaction of the Obligations but shall return to the Pledgor proceeds of an enforcement of the Pledges if and to the extent that:
(a) the Pledge secures Pledges secure the obligations of a Grantor which is (x) a shareholder of the Pledgor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Pledgor (other than the Pledgor and its subsidiaries); and
(b) the application of proceeds of an enforcement of the Pledges towards the Obligations would have the effect of (x) reducing the Pledgor’s net assets (Reinvermögen) (the “Net Assets”) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) would thereby affect the assets required for the obligatory preservation of the Pledgor’s stated share capital (Stammkapital) according to section 30, 31 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Collateral Agent.
7.3 8.3 The Net Assets shall be calculated as an amount equal to the sum of the values of the Pledgor’s assets (consisting of all assets which correspond to the items set forth in section 266 sub-section(2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Pledgor’s liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section(3section (3) B, C and D of the German Commercial Code), save that:
(a) any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that is not necessary for the Pledgor’s business (nicht betriebsnotwendig) shall be taken into account with its market value;
(b) obligations under loans provided to the Pledgor by any member of the Group or any other affiliated company shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Pledgor; and
(c) obligations under loans or other contractual liabilities incurred by the Pledgor in violation of the provisions of the Credit Documents shall not be taken into account as liabilities. The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the Pledgor in the preparation of its most recent annual balance sheet (Jahresbilanz). It being understood that the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if the managing directors of the Pledgor, at the time they prepare the Management Determination (as defined below) are, due to factual or legal circumstances at that time, in their opinion not able to make a positive prognosis as to whether the business of the Pledgor can carry on as a going concern (positive Fortführungsprognose), in particular when the Pledge is Pledges are enforced.
7.4 8.4 The limitations set out in Clause 7.2 8.2 above shall only apply if and to the extent that:
(a) without undue delay, but not later than within 5 business days, after receipt of a notification by the Collateral Agent of its intention to enforce any of the Pledge Pledges (the “Notice”), the Pledgor has confirmed in writing to the Collateral Agent (x) to what extent such Pledge is Pledges are up-stream or cross-stream security as described in Clause 7.2 8.2 above and (y) which amount of proceeds of an enforcement of the Pledges attributable to the enforcement of such up-stream or cross-stream security cannot be enforced applied towards satisfaction of the Obligations but would have to be returned to the Pledgor as it would otherwise cause the net assets Net Assets of the Pledgor to fall below its stated share capital (taking into account the adjustments set out in Clause 7.3 8.3 above) and such confirmation is supported by evidence reasonably satisfactory to the Collateral Agent (the “Management Determination”) and the Collateral Agent has not contested this and argued that no or a lesser amount would be necessary to maintain the Pledgor’s stated share capital; or
(b) within 20 business days from the date the Collateral Agent has contested the Management Determination, the Collateral Agent receives from the Pledgor an up to date balance sheet prepared by a firm of auditors of international standard and reputation (the “Determining Auditors”) which shows the value of the Pledgor’s Net Assets (the “Balance Sheet”). The Balance Sheet shall be prepared in accordance with the principles set out in Clause 7.3 8.3 above, provided that the final sentence of Clause 7.3 8.3 above shall not apply unless the Determining Auditors have in an independent assessment determined that the assets of the Pledgor should be evaluated at liquidation values (Liquidationswerte) in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to Clause 7.3 8.3 above. If the Pledgor fails to deliver a Balance Sheet within the aforementioned time period, the Pledgee Pledgees shall be entitled to enforce apply the Pledge proceeds of an enforcement of the Pledges towards satisfaction of the Obligations irrespective of the limitations set out in Clause 7.2 8.2 above.
7.5 8.5 If the Pledgee disagrees Pledgees disagree with the Balance Sheet, it Sheet they shall be entitled to enforce apply proceeds of an enforcement of the Pledge Pledges in satisfaction of the Obligations up to the an amount which, according to the Balance Sheet, can be enforced applied in satisfaction of the Obligations in compliance with the limitations set out in Clause 7.2 8.2 above. In relation to any additional amounts for which the Pledgor is liable under this Agreement, the Pledgee Collateral Agent and the Pledgees shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the Pledgee has Pledgees have given notice of its intention that they intend to enforce the security created under this Agreement).
7.6 8.6 No reduction of the amount enforceable or applicable towards satisfaction of the Obligations under this Clause 7 8 will prejudice the right of the Pledgee Collateral Agent and the Pledgees to continue enforcing the Pledge Pledges (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured.
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