German Guarantee Limitations Sample Clauses
The "German Guarantee Limitations" clause defines the specific restrictions and conditions under which guarantees provided by German entities are valid and enforceable. Typically, this clause ensures that any guarantees given comply with mandatory German law, such as limitations on the amount, duration, or scope of the guarantee, and may require that certain corporate formalities are observed. For example, it may stipulate that a guarantee is only valid if approved by the guarantor’s shareholders or that it cannot exceed a certain financial threshold. The core function of this clause is to ensure that guarantees remain legally effective and to protect German guarantors from inadvertently breaching local legal requirements, thereby reducing the risk of unenforceable obligations.
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German Guarantee Limitations. (a) Each Secured Party agrees not to enforce against a German Guarantor any payment obligation arising out of the guarantee contained in Section 2.01 (the “Payment Obligation”) (i) if and to the extent such Payment Obligation secures obligations of an affiliated company (verbundenes Unternehmen) of such German Guarantor within the meaning of Section 15 of the German Stock Corporation Act (Aktiengesetz) (other than any of the German Guarantor’s Subsidiaries) and (ii) if and to the extent the enforcement of such Payment Obligation would cause the German Guarantor’s or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s net assets (Reinvermögen), i.e., assets (the calculation of which shall include all items set forth in Section 266(2) A., B. and C. of the German Commercial Code (Handelsgesetzbuch)) minus liabilities and liability reserves (the calculation of which shall include all items set forth in Section 266(3) B., C. and D. of the German Commercial Code (Handelsgesetzbuch)) to fall below its stated share capital (Stammkapital) (Begründung einer Unterbilanz) or, if such net assets are already less than its stated share capital (Stammkapital), would cause such amount to be further reduced (Vertiefung einer Unterbilanz) (such event a “Capital Impairment”) and such enforcement would result in a violation of Section 30 of the German Act on Limited Liability Companies (Gesetz betreffend die Gesellschaften mit beschränkter Haftung – “GmbHG”) provided that for the purposes of calculating the amount to be enforced (if any) the following balance sheet items shall be adjusted as follows:
(i) the amount of any increase of stated share capital (Stammkapital) of the German Guarantor or, in the case of a German GmbH & Co. KG Guarantor, its general partner that has been effected without the prior written consent of the Administrative Agent shall be deducted from the stated share capital (Stammkapital);
(ii) liabilities arising from loans provided to the relevant German Guarantor by the Company or any of its Subsidiaries shall be disregarded if such loans are subordinated within the meaning of Section 39(2) of the German Insolvency Code (Insolvenzordnung); and
(iii) any loans and other contractual liabilities incurred by the German Guarantor or, in the case of a German GmbH & Co. KG Guarantor, its general partner in violation of the provisions of any of the Loan Documents shall be disregarded.
(b) Upon delivery of an Enforcement Notice (as defined be...
German Guarantee Limitations. (a) If and to the extent that:
(i) a guarantee granted under the Facility Agreement secures any Loans, (i) which are made to a corporation, or (ii) which are deemed to be made to a corporation according to Section 8a paragraph 5 sentence 2 German Corporation Income Tax Act (Körperschaftsteuergesetz), and which corporation is subject to German corporation income tax, (such Loans being defined as a “German Loans” and such corporation being defined as “German Borrower”); and
(ii) the relevant Guarantor granting such guarantee either (i) qualifies as a major shareholder (wesentlicher Anteilseigner) within the meaning of Section 8a of the German Income Corporation Tax Act (Körperschaftssteuergesetz) of such German Borrower or (ii) as an affiliated party within the meaning of Section 1 paragraph 2 of the German Foreign Trade Tax Act (Aussensteuergesetz) of such a major shareholder of such German Borrower, such guarantee (or any enforceable judgment based thereon) shall not be enforced against assets of the relevant Guarantor which qualify as LTIBR(s) if and to the extent such LTIBR(s) are (i) encumbered in favour of any of the Finance Parties pursuant to a lien arising under the general business terms (AGB-Pfandrecht) of such Finance Party, (ii) the subject of a disposal restriction (Verfügungsbeschränkung) or (iii) subject to enforcement pursuant to a submission to immediate foreclosure in the entire property (Unterwerfung unter die sofortige Zwangsvollstreckung in das gesamte Vermögen) of the relevant Guarantor;
German Guarantee Limitations. (a) The right of the Secured Parties to enforce the Guaranteed Obligations of a German Guarantor existing in the form of a German limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) or a limited liability partnership with a limited liability company as partner (GmbH & Co. KG) under this Article X shall be limited if and to the extent that the Guaranteed Obligations secure any obligation of an affiliated company (verbundenes Unternehmen) within the meaning of section 15 German Stock Corporation Act (Aktiengesetz) (in each case other than any of such German Guarantor's direct or indirect subsidiaries) and the enforcement of such Guaranteed Obligations would cause:
(i) such German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) net assets (Reinvermögen) determined in accordance with the provisions of the German Commercial Code (Handelsgesetzbuch) consistently applied by such German Guarantor (or in the case of a GmbH & Co. KG, its general partner) in preparing its unconsolidated balance sheets (Jahresabschluss) according to section 42 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung), sections 242, 264 German Commercial Code and in accordance with sections 30, 31 German Limited Liability Companies Act (as applicable at the time of enforcement)) (the "Net Assets") to be less than its registered share capital (Stammkapital) (Begründung einer Unterbilanz); or
(ii) (if such German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets are already less than its registered share capital) the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets to be further reduced (Vertiefung einer Unterbilanz) (in each case a "Capital Impairment").
(b) For the purposes of the calculation of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) Net Assets:
(i) the amount of any increase of the German Guarantor's (or in the case of a GmbH & Co. KG, its general partner's) registered share capital that has been effected without the prior written consent of any Agent or is otherwise permitted under this Agreement and the other Loan Documents shall be deducted from the registered share capital;
(ii) any obligations of the German Guarantor (or in the case of a GmbH & Co. KG, of its general partner) towards any of the Borrowers or any of their affiliates which are subordinated in accordance with section ...
German Guarantee Limitations. (a) In this Clause 21.10:
German Guarantee Limitations. (a) In this Clause 21.10:
(i) German Guarantor means any Guarantor incorporated in Germany as (x) a limited liability company (Gesellschaft mit beschränkter Haftung - GmbH) (a German GmbH Guarantor) or (y) a limited partnership (Kommanditgesellschaft) with a limited liability company as sole general partner (a German GmbH & Co. KG Guarantor) in relation to whom the Security Trustee intends to enforce the provisions of Clause 21 (Guarantee and Indemnity); and
German Guarantee Limitations. (a) To any guarantor, or deemed guarantor and/or surety provider under the law, incorporated under the laws of the Federal Republic of Germany and constituted in the form of a German limited liability company ("Gesellschaft mit beschrankter Haftung-GmbH") (a "German Company") the following shall apply:
German Guarantee Limitations. If and to the extent that:
German Guarantee Limitations. On the basis of the judgements LG Darmstadt, 25.4.2013 – 16 O ▇▇▇/▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ a. M., 8.11.2013 – 24 ▇ ▇▇/▇▇ ▇, ▇▇▇, 10.1.2017 – II ZR 94/15 and BGH, 21.3.2017 – II ZR 93/16 the respective directors (Geschäftsführer) of each of the German Domiciled Obligor have assessed the financing concept provided for in connection with the Loan Documents and are satisfied by its robustness. In the case that during the lifetime of this Agreement the directors of a German Domiciled Obligor reasonably expect to suffer a personal liability in the case of a demand under the guarantee and indemnity as a result of a change in law or a further interpretation of the foregoing judgements, the Lenders agree to enter into negotiations with that German Domiciled Obligor in order to limit the guarantee and indemnity in order to avoid a personal liability of the directors of that German Domiciled Obligor. Other limitations and qualifications to the Obligations of any German Domiciled Obligor set forth in Schedule I to the Seventh Amendment may be agreed in writing by Agent in its discretion.
5.10.5 [Reserved].
German Guarantee Limitations