AFFILIATED COMPANY (VERBUNDENES UNTERNEHMEN) TO A SIGNIFICANT
RISK OF CIVIL OR CRIMINAL LIABILITY; AND
(II)
SPECIFIES THE MAXIMUM AMOUNT TO WHICH THE PAYMENT AND/OR ENFORCEMENT
OF ANY CLAIMS UNDER OR IN CONNECTION WITH THE FINANCE DOCUMENTS SHALL BE LIMITED
TO PREVENT THE CIRCUMSTANCES REFERRED TO IN THE SUB-PARAGRAPH IMMEDIATELY ABOVE
FROM ARISING.
(F)
IF THE FACILITY AGENT (ACTING ON BEHALF OF THE LENDERS)
DISAGREES WITH THE CONCLUSIONS OF THE ABOVEMENTIONED LEGAL OPINION, THE FACILITY
AGENT SHALL BE ENTITLED TO FURTHER PURSUE ITS CLAIMS AND/OR RIGHTS (IF ANY)
UNDER THE DISPUTE SOLUTIONS AGREED UPON AND, IN PARTICULAR, TO CONTEST THE
CONCLUSIONS OF THE LEGAL OPINION (AND THEREFORE THE LIMITATIONS ON THE
GUARANTEES) IN COURT, AND THE GERMAN OBLIGOR SHALL BE ENTITLED TO PROVE WHAT
LIMITATIONS UNDER THE RELEVANT
73
GUARANTEES ARE NECESSARY TO PREVENT THE MANAGING DIRECTORS OF THE GERMAN OBLIGOR
(OR ITS SHAREHOLDER'S OR AN AFFILIATED COMPANY'S MANAGING DIRECTORS, OFFICERS OR
BOARD MEMBERS) OR AN AFFILIATED COMPANY TO BECOME SUBJECT TO CIVIL OR CRIMINAL
LIABILITY, AND THE CONCLUSIONS OF SUCH DISPUTE RESOLUTION PROCESSES SHALL
(SUBJECT TO ANY RIGHTS OF APPEAL) BE EFFECTIVE BETWEEN THE PARTIES (I.E., THE
LIMITATIONS ON THE RELEVANT GUARANTEES SHALL BE ADJUSTED TO REFLECT THE
CONCLUSIONS OF SUCH DISPUTE RESOLUTION PROCESSES).
(G)
IN THE CASE OF A GUARANTOR ORGANISED IN THE FORM OF A LIMITED
PARTNERSHIP IN WHICH THE GENERAL PARTNER IS A GMBH (GMBH & CO. KG), THE
PROVISIONS SET OUT ABOVE SHALL APPLY MUTATIS MUTANDIS TO THE GUARANTOR'S GENERAL
PARTNER (KOMPLEMENTÄR).
(H)
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;
21.10
LIMITATION ON A GUARANTEE BY UNITED STATES BORROWERS
Each Guarantor, the Facility Agent and each other Finance Party,