Common use of Luxembourg Guarantee Limitations Clause in Contracts

Luxembourg Guarantee Limitations. (i) Notwithstanding the foregoing and any other provision in the Loan Documents to the contrary, the payment obligations of any Guarantor incorporated under the laws of Luxembourg (hereafter, a “Luxembourg Guarantor”) for the obligations of any Borrower which is not a Subsidiary of that Luxembourg Guarantor shall be limited at any time, to an aggregate amount not exceeding ninety-five (95) per cent. of the greater of: (A) the Luxembourg Guarantor’s (A) own funds (capitaux propres) as determined by Annex 1 of the Grand-Ducal Regulation of 19 December 2015 in relation to, inter alia, article 34 of the Luxembourg law of 19 December 2002 on the Register of Commerce and Companies, on accounting and on annual accounts of the companies, as amended (the “2002 Act”) (the “Net Assets”), and (B) the debt owed by such Luxembourg Guarantor to any of its direct or indirect shareholders and to Holdings or any Subsidiary (as determined by Annex 1 of the Grand-Ducal Regulation of 18 December 2015 in relation to, inter alia, article 34 of the 2002 Act, and (C) the subordinated debt (dettes subordonnées) (as determined in the general accounting plan (Account 191)) of the relevant Luxembourg Guarantor, and (D) any subordinated debt (dettes subordonnées) owed and incurred by such Luxembourg Guarantor in violation of the provisions of this Agreement (the debts referred to in (B), (C) and (D) above being (the “Luxembourg Subordinated Debt”)), each as reflected in Luxembourg Guarantor’s last annual accounts available as at the date of this Agreement; and (B) the Luxembourg Guarantor’s Net Assets and the Luxembourg Subordinated Debt as reflected in its last annual accounts available as at the date the Guarantee is called. (ii) For the purpose of this paragraph 2(b), the Net Assets shall be valued either (i) at the fair market value, or (ii) if no such market value has been determined, in accordance with GAAP or IFRS, as applicable, and the relevant provisions of the 2002 Act. (iii) The limitation set forth above shall not apply to any amounts borrowed under this Agreement and made available, in any form whatsoever, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.

Luxembourg Guarantee Limitations. In relation to any Guarantor whose federal or state law to the extent applicable to the guaranty set forth herein and the obligations of registered office/place of central administration is in Luxembourg and whose centre of main each Guarantor hereunder, if the obligations of such Guarantor under Section 1 hereof would interest (as that term is used in Article 3(1) of Regulation (EU) of the Council and the European otherwise be determined to be void, invalid or unenforceable, or subordinated to the claims of any Parliament No. 2015/848 of 20 May 2015 on insolvency proceedings, recast, (the "Insolvency other creditors, in such action or proceeding on account of the amount of its liability under Regulation") is in Luxembourg (the "Luxembourg Guarantor") (i) Notwithstanding the foregoing and notwithstanding any other Section 1, then, notwithstanding any other provision in the Loan Documents hereof to the contrary, the payment amount of such provision of this Guaranty, the aggregate obligations and exposure of the Luxembourg Guarantor liability shall, without any Guarantor incorporated under further action by such Guarantor, any Lender, the laws Collateral Agent, in respect of Luxembourg (hereafter, a “Luxembourg Guarantor”) for the obligations of a member of the Group (as defined in the Credit Agreement) which Administrative Agent or any Borrower which other Person, be automatically limited and reduced to the highest is not a Subsidiary direct or indirect subsidiary of that such Luxembourg Guarantor shall be limited at any time, time to amount which is valid and enforceable and not subordinated to the claims of other creditors as an aggregate amount not exceeding ninety-five (95) per cent. 90% of the greater of: of (Ai.i) an amount equal to the sum of the determined in such action or proceeding. Luxembourg Guarantor’s (A) own funds (capitaux propres) as determined by Annex 1 of the Grand-Ducal Regulation of 19 December 2015 in relation to, inter alia, article 34 of the Luxembourg law of 19 December 2002 on the Register of Commerce 's Net Assets and Companies, on accounting and on annual accounts of the companies, as amended (the “2002 Act”) (the “Net Assets”), and (B) the debt owed by such Luxembourg Guarantor to any of its direct or indirect shareholders and to Holdings or any Subsidiary (as determined by Annex 1 of the Grand-Ducal Regulation of 18 December 2015 in relation to, inter alia, article 34 of the 2002 Act, and (C) the subordinated debt (dettes subordonnées) (), as determined reflected in the general accounting plan (Account 191)) financial information of the relevant Luxembourg Guarantor available to the Lenders, including, (b) In such circumstances, to effectuate the foregoing, the amount of the without limitation, its most recently and duly approved financial statements (comptes annuels) and liability of each Guarantor hereunder shall be determined without taking into account any liabilities any (unaudited) interim financial statements signed by its board of managers (gérants) and (i.ii) under any other indebtedness of or guarantee by such Guarantor. For purposes of the foregoing, an amount equal to the sum of the Luxembourg Guarantor, 's Net Assets and (D) any its subordinated debt all indebtedness and guarantees of such Guarantor other than the guarantee under Section 1 hereof (dettes subordonnées) owed and incurred by such Luxembourg Guarantor in violation of the provisions of this Agreement (the debts referred to in (B), (C) and (D) above being (the “Luxembourg Subordinated Debt”)), each as reflected in Luxembourg Guarantor’s last annual accounts available as at the date financial information of this Agreement; and (B) the Luxembourg Guarantor’s Net Assets Guarantor will be deemed to be enforceable and payable after the Luxembourg Subordinated Debt as reflected in its last annual accounts guarantee under Section 1. To the fullest available to the Lenders as at the date the Guarantee guarantee is called. (ii) For the purpose of , including, without limitation, its extent permitted by applicable Law, this paragraph 2(b), the Net Assets Section 8 shall be for the benefit solely of creditors and most recently and duly approved financial statements (comptes annuels) and any (unaudited) representatives of creditors of each Guarantor and not for the benefit of such Guarantor or the interim financial statements signed by its board of managers (gérants). For this purpose, "Net holders of any equity interest in such Guarantor. Each Guarantor agrees that Obligations may at Assets" shall mean all the assets (actifs) of the Luxembourg Guarantor minus its liabilities any time and from time to time be incurred or permitted in an amount exceeding the maximum (provisions et dettes) as valued either (i) at the fair market valuevalue determined by an independent liability of such Guarantor under this Section 8 without impairing the guaranty contained in third party appointed by the Lenders, or (ii) if no such market value has been determined, in Section 1 hereof or affecting the rights and remedies of any Secured Party hereunder. accordance with GAAP Luxembourg generally accepted accounting principles (Lux GAAP) or International Financial Reporting Standards (IFRS), as applicable, and the relevant provisions of the 2002 Act. (iii) The limitation set forth above shall not apply to any amounts borrowed under this Agreement and made available, in any form whatsoever, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.6 7

Luxembourg Guarantee Limitations. (ia) Notwithstanding the foregoing and any other provision in the Loan Documents of any Guarantee Agreement to the contrary, the payment obligations and liabilities of any Guarantor Debtor incorporated under the laws of in Luxembourg (hereafter, a “Luxembourg GuarantorDebtor”) under any Guarantee Agreement for the obligations of any Borrower other Debtor which is not a Subsidiary of that Luxembourg Guarantor Debtor shall be limited at any timetime (with no double counting), to an aggregate amount not exceeding ninety-five (95) 95 per cent. of the greater of: (i) the sum of: (A) the Luxembourg GuarantorDebtor’s (A) own funds (capitaux propres) (as determined by referred to in Annex 1 I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the Grand-Ducal Regulation presentation of 19 December 2015 in relation tothe balance sheet and profit and loss account, inter alia, article 34 of enforcing the Luxembourg law of 19 December 2002 on the Register of Commerce commercial companies’ register and Companies, on the accounting and on annual accounts of the companiesundertakings, as amended (the “2002 ActGrand Ducal Regulation”)) (the “Net AssetsOwn Funds”), and ; and (B) the all debt owed by such Luxembourg Guarantor Debtor to any of its direct or indirect shareholders and to Holdings or any Subsidiary (as determined by Annex 1 member of the Grand-Ducal Regulation of 18 December 2015 Group (recorded in relation to, inter alia, article 34 any of the 2002 Act, and categories of the debt section (C) the subordinated debt (dettes subordonnées) (as determined in the general accounting plan (Account 191)dettes) of Annex I to the relevant Luxembourg Guarantor, and (DGrand Ducal Regulation) any subordinated debt (dettes subordonnées) owed and incurred by such Luxembourg Guarantor in violation of the provisions of this Agreement (the debts referred to in (B), (C) and (D) above being (the “Luxembourg Subordinated Intra-Group Debt”)), each both as reflected in Luxembourg Guarantor’s last determined on the basis of the then latest available annual accounts available of the Luxembourg Debtor duly established in accordance with applicable accounting rules, as at the date of this AgreementAgreement was entered into; or (ii) the sum of: (A) the Own Funds; and (B) the Luxembourg Guarantor’s Net Assets and Intra-Group Debt, in each case as determined on the basis of the then latest available annual accounts of the Luxembourg Subordinated Debt as reflected Debtor duly established in its last annual accounts available accordance with applicable accounting rules, as at the date on which the Guarantee relevant guarantee or security interest is calledcalled or enforced (as applicable). (b) Where, for the purpose of the above determination: (i) no duly established annual accounts are available for the relevant reference period (which will include a situation where, in respect of the determinations to be made above, no final annual accounts have been established in due time in respect of the then most recently ended financial year); (ii) For the purpose relevant annual accounts do not adequately reflect the status of this paragraph 2(bthe Own Funds and/or the Intra-Group Debt as envisaged above; (iii) the Luxembourg Debtor has taken corporate or contractual actions having resulted in the increase of its Own Funds and/or its Intra-Group Debt since the close of its last financial year; or (iv) the Intra-Group Debt cannot be determined on the basis of the available annual accounts, nor on the basis of the standard chart of accounts of the Luxembourg Debtor (which the Luxembourg Debtor undertakes to disclose to the relevant Guarantee Party for such purpose, when required), the Net Assets shall Own Funds and/or the Intra-Group Debt will be valued either (i) at the fair market valuevalue as determined by an external auditor (réviseur d’entreprises agréé) appointed by the Security Agent, or (ii) if no such market value has been determined, whose valuation shall be binding save in accordance with GAAP or IFRS, as applicable, and the relevant provisions case of the 2002 Actmanifest error. (iiic) The above limitation set forth above shall not apply to any amounts borrowed under this the Guarantee Agreement and in each case made availableavailable directly or indirectly, in any form whatsoever, to such Luxembourg Guarantor Debtor or any of its direct or indirect subsidiaries. (d) Notwithstanding anything herein to the contrary, the obligations and liabilities of such Luxembourg Debtor shall not include any obligation or liability to the extent that, if so included, it would constitute an abuse of assets as defined in article 171-1 of the Luxembourg law on commercial companies dated 10 August 1915, as amended.