German Limitation Clause Samples
German Limitation. (a) The right to enforce this Note Guarantee with respect to a Guarantor incorporated in Germany as a limited liability company (GmbH) (a “German GmbH Guarantor”), or as a limited partnership (Kommanditgesellschaft) with a limited liability company as sole general partner (GmbH & Co. KG) (the “German GmbH & Co. KG Guarantor”, together with any German GmbH Guarantor hereinafter referred to as a “German Guarantor”) shall to the extent that this Note Guarantee secures liabilities of an affiliated company (verbundenes Unternehmen) within the meaning of Section 15 et seq. of the German Stock Corporation Act (AktG Aktiengesetz) of that German Guarantor (other than the German Guarantor’s (direct or indirect) Subsidiaries) at all times be limited to an amount equal to that German Guarantor’s, or, in the case of a GmbH & Co. KG Guarantor, its general partner’s, assets (to be calculated in accordance with Section 266 sub-section (2) A, B and C of the German Commercial Code (HGB Handelsgesetzbuch)) less the sum of (i) the German Guarantor’s liabilities (to be calculated in accordance with Section 266 sub-section (3) B, C and D of the German Commercial Code), and (ii) the stated share capital (Stammkapital) of the German Guarantor or, in the case of a German Guarantor in the legal form of GmbH & Co. KG, its general partner (the “Net Assets”), provided that the enforcement of the Guarantee would cause a violation of Sections 30, 31 of the German Limited Liability Companies Act (GmbHG Gesetz betreffend die Gesellschaften mit beschränkter Haftung).
(b) For the purposes of the calculation of the Net Assets the following balance sheet items shall be adjusted as follows:
(1) the amount of any increase of the stated share capital (Stammkapital) of the German Guarantor, or, in case of a German GmbH & Co. KG Guarantor, its general partner, after the date hereof (excluding any such increase of stated share capital permitted pursuant to any other agreement to which the Trustee and the relevant German Guarantor are a party) (i) that has been effected without the prior written consent of the Trustee not to be unreasonably withheld, (ii) that has been effected out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) or (iii) to the extent that it is not fully paid up, shall be deducted from the stated share capital;
(2) loans and contractual liabilities incurred in violation of the provisions of the Indenture shall be disregarded; and
(3) loans provided to the German Gua...
German Limitation. 18.12.1 To the extent a German Obligor guarantees liabilities other than its own liabilities or liabilities of its German Subsidiaries (up-stream or cross-stream guarantees), the Security Trustee agrees to release any amounts resulting from the enforcement of this guarantee if and only to the extent that that German Obligor demonstrates, by evidence reasonable satisfactory to the Lenders, that the application of the proceeds resulting from the enforcement of this guarantee would otherwise lead to a reduction of:
(A) its Net Assets (as defined below) (Reinvermögen) to an amount less than its registered share capital (Stammkapital); or
(B) if its net assets have already fallen below the registered share capital, causing such amount to be further reduced.
18.12.2 If the German Obligor notifies the Security Trustee, within 20 Business Days after the Security Trustee has notified the German Obligor of its intention to enforce this guarantee, that payment in full of an amount due from it under this guarantee would lead to one of the effects referred to in Clause 18.12.1, then the amount due for payment at that time hereunder by the German Obligor will be reduced to the extent necessary to ensure compliance by the German Obligor with its obligations to preserve its stated share capital.
18.12.3 If the Security Trustee is not satisfied with the evidence given by the German Obligor pursuant to Clause 18.12.1 and/or Clause 18.12.2, such German Obligor may within 15 calendar days (or such longer period as has been agreed between the German Obligor and the Security Trustee for such purpose) from the date the Security Trustee has given the German Obligor written notice to this effect (the “Notice”), request a determination by auditors of international standing and reputation of the amount of the available Net Assets, as defined below (the “Auditor’s Determination”). If the Security Trustee and the German Obligor do not agree on the appointment of a joint auditor within 5 Business Days from the date the Security Trustee has given the Notice the Security Trustee is entitled to appoint auditors of international standing and reputation. The amount determined as the available Net Assets in the Auditor’s Determination shall be (except for manifest error) binding for all parties. The costs of the Auditor’s Determination shall be borne by the German Obligor.
18.12.4 No release or reduction of any of the proceeds resulting from the enforcement of this guarantee in accordance wi...