Luxembourg Guarantors. A Luxembourg Guarantor’s obligations is subject to the following guarantee limitation (or, in respect of any future Luxembourg Guarantor, a guarantee limitation, which will be contained in any Guarantor Joinder (if applicable)) to this Agreement, or in any other agreement or deed, under which that Luxembourg Guarantor becomes an additional Guarantor, substantially in the following form:
(i) Notwithstanding any other provision herein, the maximum amount payable by a Luxembourg Guarantor in respect of its Guaranteed Obligations shall not, at any time, exceed the greater of:
(A) an amount equal to 95% of that Luxembourg Guarantor’s net assets (capitaux propres), existing as at the date of this Agreement, as shown in its most recently and duly approved financial statements (comptes annuels); and
(B) an amount equal to 95% of that Luxembourg Guarantor’s net assets (capitaux propres), existing as at the Luxembourg Guarantee Demand Date, as shown in its most recently and duly approved financial statements (comptes annuels). For this purpose “net assets (capitaux propres)” will be determined in accordance with annex to the grand-ducal regulation dated 18 December 2015 defining the form and content of the presentation of balance sheet and profit and loss account, and enforcing the Luxembourg Act of 19 December 2002 on the Register of Commerce and Companies, on accounting and on annual accounts of the companies.
(ii) The limit in paragraph (i) above will not apply to any Guaranteed Obligations in respect of any Luxembourg Guarantor’s Borrowings and to Subsidiaries’ Borrowings or any other liabilities of the Subsidiaries of the Luxembourg Guarantor’s under the Loan Documents.
Luxembourg Guarantors. (a) Notwithstanding any other provisions of this Guaranty, any other guaranty entered into in connection with the Credit Agreement or as a result of the Credit Agreement, the Indenture or the Securities, in relation to each Guarantor organized under the laws of Luxembourg (the “Luxembourg Guarantor”) the maximum amount payable by that Luxembourg Guarantor under this Guaranty, any other guaranty entered into in connection with the Credit Agreement or as a result of the Credit Agreement shall at no time exceed the Maximum Amount (as defined below) of that Luxembourg Guarantor.
Luxembourg Guarantors. Any guarantee or indemnity provided by a Luxembourg entity (a "Luxembourg Guarantor") under this Section 25 (Guarantees) for any obligations under this Facility Agreement of any direct or indirect Holding Company of the Luxembourg Guarantor, shall be limited, at any time, to an aggregate amount not exceeding ninety per cent (90%) of the greater of:
(a) the Luxembourg Guarantor's own funds (capitaux propres; as referred to in article 34 of the Luxembourg act dated 19 December 2002 concerning the trade and companies register and the accounting and annual accounts of undertakings) as reflected in its last annual accounts (approved at a general meeting of its shareholders) available on the date of payment under this Facility Agreement; and
(b) the Luxembourg Guarantor's own funds (capitaux propres; as referred to in article 34 of the Luxembourg act dated 19 December 2002 concerning the trade and companies register and the accounting and annual accounts of undertakings) as reflected in its last annual accounts (approved at a general meeting of its shareholders) available as at the date of the Facility Agreement, provided that the limitation contained in this Clause 25.3 shall not apply to any guarantee or indemnity provided under this Section 25 (Guarantees) for any obligations under this Facility Agreement of any member of the Parent Group as at the date of this Facility Agreement that is not, at such time, a direct or indirect Holding Company of the Guarantor.
Luxembourg Guarantors. (a) Notwithstanding any other provision of this Credit Agreement, the maximum liability of any Guarantor incorporated under the laws of Luxembourg (a “Luxembourg Guarantor”) under this Section 9.10 for the Obligations of any obligor (including, but not limited to, the Borrower) which is not a direct or indirect Subsidiary of such Luxembourg Guarantor shall be limited to the sum of:
(i) an amount equal to the aggregate (without double-counting) of (A) all moneys received by the Luxembourg Guarantor or its direct or indirect present of future Subsidiaries under the Fundamental Documents and (B) the aggregate amount directly or indirectly made available to the Luxembourg Guarantor or its direct or indirect present or future Subsidiaries by other members of the Group that has been financed by a borrowing under the Fundamental Documents;
(ii) an amount equal to 95% of the greater of (a) the Luxembourg Guarantor’s own funds (capitaux propres), as referred to in annex I to the grand ducal regulation dated December 18, 2015 defining the form and content of the presentation of balance sheet and profit and loss account implementing Articles 34, 35, 46 and 47 of the Luxembourg law dated December 19, 2002 concerning the trade and companies register and the accounting and annual accounts of undertakings as amended (the “Regulation”) as increased by the amount of any Intra Group Liabilities, each as reflected in the Luxembourg Guarantor’s latest duly approved annual accounts and other relevant documents available to the Administrative Agent at the date of this Credit Agreement or (B) the Luxembourg Guarantor’s own funds (capitaux propres), as referred to in the Regulation as increased by the amount of any Intra Group Liabilities, each as reflected in the Luxembourg Guarantor’s latest duly approved annual accounts and other relevant documents available to the Administrative Agent at the time the Guarantee is called.
Luxembourg Guarantors. Notwithstanding anything to the contrary herein, the guarantee, indemnity and other obligations of each Subsidiary Guarantor which is incorporated under or formed under the laws of the Grand-Duchy of Luxembourg (a “Luxembourg Guarantor”):
(a) shall not apply to any payment which, if made, would either constitute a misuse of corporate assets as defined under article 171-1 of the Luxembourg law of August 10, 1915 on commercial companies, as amended, (the “Luxembourg Law on Commercial Companies”) or amount to prohibited financial assistance as provided in article 49-6 and following of the Luxembourg Law on Commercial Companies; and
(b) shall be limited in respect of obligations and liabilities of the Company other than direct and indirect subsidiaries of the relevant Luxembourg Guarantor at any time, to an aggregate amount not exceeding ninety percent (90%) of the greater of (x) the relevant Luxembourg Guarantor’s own funds (capitaux propres; as referred to in article 34 of the Luxembourg Act dated December 19, 2002 concerning the trade and companies register as well as the accounting and annual accounts of companies, as amended, hereinafter the “2002 Act”), as increased by the amount of any Intra-Group Liabilities, each as reflected in its last filed annual accounts on the date of payment under the Subsidiary Guarantee of such Luxembourg Guarantor or (y) the relevant Luxembourg Guarantor’s own funds (capitaux propres; as referred to in article 34 of the 0000 Xxx) as increased by the amount of any Intra-Group Liabilities, each as reflected in its filed annual audited accounts as at the date of this Agreement.
Luxembourg Guarantors. A Luxembourg Guarantor’s obligations is subject to the following guarantee limitation (or, in respect of any future Luxembourg Guarantor, a guarantee limitation, which will be contained in any Guarantor Joinder (if applicable)) to this Agreement, or in any other agreement or deed, under which that Luxembourg Guarantor becomes an additional Guarantor, substantially in the following form:
Luxembourg Guarantors. (a) Each Luxembourg Guarantor will comply with all applicable laws, rules, regulations and orders relating to the approval, filing or publication of annual accounts, promptly and in any event within the applicable time frames provided by the relevant Luxembourg law, rule, regulation or order and (b) no Luxembourg Guarantor will change its jurisdiction of formation to nor maintain the center of its main interests in any jurisdiction within the European Community other than Luxembourg.
Luxembourg Guarantors. (a) Notwithstanding any other provisions of this Guaranty, any other guaranty entered into in connection with the Credit Agreement or as a result of the Credit Agreement, the Indenture or the Notes, in relation to each Subsidiary Guarantor organized under the laws of Luxembourg (the “Luxembourg Guarantor”) the maximum amount payable by that Luxembourg Guarantor under this Guaranty, any other guaranty entered into in connection with the Credit Agreement or as a result of the Credit Agreement, the Indenture or the Notes shall at no time exceed the Maximum Amount (as defined below) of that Luxembourg Guarantor.
(b) The “Maximum Amount” of any Luxembourg Guarantor means the aggregate of:
(i) the outstanding intercompany loans (including without limitation by way of promissory notes) made directly or indirectly to that Luxembourg Guarantor which have been funded with moneys received by the Borrowers through the issuance of the Notes; and
(ii) an amount equal to 85% of the greater of (A) that Luxembourg Guarantor’s Fair Value (as defined below) on the date on which a demand is first made on that Luxembourg Guarantor under this Guaranty after the deduction of any amount payable or paid in accordance with paragraph (i) above and (B) that Luxembourg Guarantor’s Fair Value (as defined below) at the date of this Guaranty after the deduction of the amount payable or paid in accordance with paragraph (i) above.
Luxembourg Guarantors. The Guaranteed Obligations of a Guarantor incorporated in Luxembourg shall at all times, notwithstanding any other provision hereof to the contrary, (a) be automatically limited and reduced to an aggregate amount not exceeding the greater of (x) the aggregate of all principal amounts (with interests accrued thereon) (if any) borrowed by such Guarantor from one or several members of the Quiksilver Group (as defined below) that have been financed directly or indirectly under the Credit Agreement, increased by all fees incurred in relation to such borrowing or (y) the fair market value (valeur de réalisation) of 100% of such Guarantor’s own assets as determined, by an independent auditor (réviseur d’entreprises) designated upon the request of the Administrative Agent by the President of the Luxembourg Institut des Réviseurs d’Entreprises whose determinations shall be made in good faith and shall be binding absent manifest error, on the date of actual realization thereof less the lower of (ii) the subscribed and paid up capital of such Guarantor increased by the legal reserve or (i) the total amount payable to the other creditors of such Guarantor (excluding however creditors that are members of the Quiksilver Group (as defined below)), provided, however that: (z) such Guarantor shall not incur liabilities outside the normal course of business, nor shall it change the nature of its business, without the prior written consent of the Administrative Agent and any liabilities incurred in breach of these requirements shall not be deductible for the purpose of determining the maximum amount; and (b) shall not include any obligation which, if incurred, would constitute financial assistance within the meaning of article 49-6 of, or an abuse of assets as defined by article 171-1 of, the Luxembourg law on commercial companies dated August 10, 1915 as amended. For purposes of this Section 9, “Quiksilver Group” shall mean Quiksilver, Inc. and its direct and indirect Subsidiaries.
Luxembourg Guarantors. Xxxxxxxx Luxembourg S.A.R.L.
