Nature of Guarantee. (a) If and to the extent required in order for the Obligations to be enforceable under applicable federal, state and other laws relating to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.03(a) or to reduce, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereof. (b) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,
Appears in 6 contracts
Sources: Second Lien Credit Agreement (STR Holdings LLC), Second Lien Guarantee and Collateral Agreement (STR Holdings, Inc.), Second Lien Guarantee and Collateral Agreement (STR Holdings LLC)
Nature of Guarantee. (a) If Subject to the terms hereof, the Guarantor’s liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment, or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub, or any other agreement or instrument evidencing, securing or otherwise executed by Parent, Merger Sub, or any other Person in connection with any of the Obligations, in each case to the extent required in order for that any of the Obligations to be enforceable under applicable federal, state and other laws relating to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent foregoing does not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has have the effect of reducing, increasing the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.03(a) or to reduce, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereof.
(b) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwiseMaximum Amount. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder Guaranteed Party shall not be discharged obligated to file any claim relating to the Obligations in the event that Parent or impaired Merger Sub becomes subject to a bankruptcy, reorganization or otherwise affected by (i) similar proceeding, and the failure of the Collateral Agent or any other Secured Guaranteed Party to assert so file shall not affect the Guarantor’s obligations hereunder. In the event that any claim or demand or payment from the Guarantor to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any Guaranteed Party in respect of the terms Obligations is rescinded or provisions ofmust otherwise be, and is, returned to the Guarantor for any Loan Document reason whatsoever, the Guarantor shall remain liable hereunder as if such payment had not been made. This Limited Guarantee is an unconditional guarantee of payment and performance and not of collectability. The Guarantor reserves the right to assert as a defense to such payment by the Guarantor under this Limited Guarantee any rights, remedies and defenses that Parent or any other agreement, including Merger Sub may have with respect to payment of any other Guarantor Obligations under this the Merger Agreement, (iii) other than defenses arising from the release ofbankruptcy or insolvency of Parent or Merger Sub and other defenses expressly waived herein. This Limited Guarantee is a primary and original obligation of the Guarantor and is not merely the creation of a surety relationship, and the Guaranteed Party shall not be required to proceed against Parent or any impairment of or failure to perfect any Lien on or security interest in, any security held by Merger Sub first before proceeding against the Collateral Agent or any other Secured Party for the Obligations or any of them,Guarantor.
Appears in 6 contracts
Sources: Limited Guarantee (Genetron Holdings LTD), Limited Guarantee (Genetron Holdings LTD), Limited Guarantee (Genetron Holdings LTD)
Nature of Guarantee. (a) If The Guaranteed Party shall not be obligated to file any claim relating to the Obligations in the event that Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor’s obligations hereunder. Subject to the terms hereof, the Guarantor’s liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Merger Sub, in each case to the extent required in order for that any of the Obligations to be enforceable under applicable federal, state and other laws relating to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent foregoing does not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has have the effect of reducing, expanding the amount circumstances under which the Obligations are payable. In the event that any payment to the Guaranteed Party hereunder in respect of its liability under this Agreement, the Obligations is rescinded or must otherwise be returned for any reason whatsoever (ii) such Guarantor (other than as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this the last sentence of Section 2.03(a) or to reduce, or request judicial relief reducing8 hereof), the amount Guarantor shall remain liable hereunder with respect to the Guaranteed Percentage of its liability under this Agreementsuch Obligations, subject to the terms and conditions hereof (including the Cap), as if such payment had not been made. This Limited Guarantee is an unconditional guarantee of payment and not of collection. This Limited Guarantee is a primary obligation of the Guarantor and is not merely the creation of a surety relationship, and (iii) the limitation set forth in this Section 2.03(a) may Guaranteed Party shall not be enforced only required to proceed against Merger Sub first before proceeding against the Guarantor hereunder. Notwithstanding anything herein to the extent required under such laws in order for contrary, the obligations of such Guarantor under this Agreement shall have the right to be enforceable under such laws assert, and only by or for shall have the benefit of, any defenses to the payment of a creditor, representative of creditors the Obligations that are available to Merger Sub under the Merger Agreement or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereof.
(b) Except for termination of a Guarantor’s obligations hereunder as otherwise expressly provided in Section 7.153(a) hereof, the obligations other than defenses arising from bankruptcy, reorganization or similar proceeding of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,Merger Sub.
Appears in 6 contracts
Sources: Limited Guarantee (51job, Inc.), Limited Guarantee (51job, Inc.), Limited Guarantee (Recruit Holdings Co., Ltd.)
Nature of Guarantee. (a) If and to the extent required in order for the Obligations to be enforceable under applicable federal, state and other laws relating to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.03(a) or to reduce, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereof.
(b) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,, (iv) any default, failure or delay, wilful or otherwise, in the performance of the Obligations, or (v) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations). Subject to the terms of this Agreement, each Guarantor expressly authorizes the Collateral Agent to take and hold security for the payment and performance of the Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in its sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Obligations, all without affecting the obligations of any Guarantor hereunder.
(c) To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of the Borrower or any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower or any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with the Borrower or any other Loan Party or exercise any other right or remedy available to them against the Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations have been fully and indefeasibly paid in full in cash. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Borrower or any other Loan Party, as the case may be, or any security.
Appears in 6 contracts
Sources: First Lien Guarantee and Collateral Agreement (STR Holdings, Inc.), First Lien Credit Agreement (STR Holdings LLC), First Lien Credit Agreement (STR Holdings (New) LLC)
Nature of Guarantee. (a) If This Limited Guarantee is an unconditional and continuing guarantee of payment, not of collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent, Merger Sub or any other Person or whether Parent, Merger Sub or any other Person is joined in any such action or actions; provided that no action or actions may be brought against the Guarantor under this Limited Guarantee unless the Other Guarantor has fulfilled the Guaranteed Obligations (as defined in the Other Guarantee) or such action or actions have also been brought simultaneously against the Other Guarantor under the Other Guarantee (except to the extent required that the bringing of such action or actions against the Other Guarantor is prohibited or stayed by any applicable Law or Order). The Guaranteed Party shall not release the Other Guarantor from any obligations under the Other Guarantee or amend or waive any provision of the Other Guarantee unless the Guaranteed Party offers to release the Guarantor under this Limited Guarantee in order for the Obligations same proportion or to be enforceable under applicable federal, state and other laws relating amend or waive the provisions of this Limited Guarantee in the same manner. Notwithstanding anything to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth contrary contained in this Section 2.03(a) Limited Guarantee or to reduceany other document, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such the Guarantor under this Agreement to Limited Guarantee and of the Other Guarantor under the Other Guarantee shall be enforceable under such laws several and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereofnot joint.
(b) Except for termination The liability of a Guarantor’s obligations hereunder the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable Law, be absolute, irrevocable and unconditional, irrespective of:
(i) any release or discharge of any obligation of Parent or Merger Sub in connection with the Merger Agreement resulting from any change in the corporate existence, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent, Merger Sub or any of their respective assets, other than as expressly provided and if required by Section 2(a);
(ii) any amendment or modification of the Merger Agreement, or any change in Section 7.15the manner, place or terms of payment or performance of, any change or extension of the obligations time of payment or performance of, or any renewal or alteration of, any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
(iii) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise, other than in each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including case (A) any claim of waiver, release, surrender, alteration or compromise, and shall not be subject set-off against or defense to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason the payment of the invalidityGuaranteed Obligations that may be available to Parent or Merger Sub under the Merger Agreement or (B) with respect to this Limited Guarantee, illegality or unenforceability a breach by the Guaranteed Party of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by this Limited Guarantee;
(iiv) the failure of the Collateral Agent or any other Secured Guaranteed Party to assert any claim or demand or to enforce any right or remedy under against Parent, Merger Sub, the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document other Guarantor or any other agreement, including Person primarily or secondarily liable with respect to any Guaranteed Obligation, other than as and if required by Section 2(a) (including in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding);
(v) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations;
(vi) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms), other than in each case with respect to (A) any claim or set-off against or defense to the payment of the Guaranteed Obligations that may be available to Parent or Merger Sub under the Merger Agreement or (B) with respect to this Limited Guarantee, a breach by the Guaranteed Party of this Limited Guarantee; or
(vii) the value, genuineness, validity, illegality or enforceability of the Merger Agreement, the Other Guarantee, the Equity Commitment Letter, the equity commitment letter entered into between the Sponsors other than the Guarantor (the “Other Sponsor”) and Parent dated as of the date hereof (the “Other Equity Commitment Letter”), or any other agreement or instrument referred to herein or therein.
(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, the Other Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party, subject to the provisions of Section 2(a).
(d) To the fullest extent permitted by Law, the Guarantor irrevocably waives promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any other notice not provided for herein (except for notices to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, insolvency, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, the Guarantor, the Other Guarantor or any other Person for any reason whatsoever, the Guarantor shall remain liable hereunder in accordance with the terms hereof with respect to such Guaranteed Obligation as if such payment had not been made, so long as this Limited Guarantee has not been terminated in accordance with its terms.
(f) Notwithstanding anything to the contrary contained in this Limited Guarantee, the Guaranteed Party hereby agrees that: (i) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Guaranteed Obligations as well as any defenses in respect of fraud or willful misconduct of the Guaranteed Party hereunder or any breach by the Guaranteed Party of any term hereof, and (ii) the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this AgreementLimited Guarantee, (iii) any claim, set-off, deduction, defense or release that Parent or Merger Sub would be entitled to assert against the release Guaranteed Party under the terms of, or any impairment with respect to, the Merger Agreement that would relieve each of or failure Parent and Merger Sub of its obligations under the Merger Agreement with respect to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,Guaranteed Obligations.
Appears in 2 contracts
Sources: Limited Guarantee (Bitauto Holdings LTD), Limited Guarantee (Tencent Holdings LTD)
Nature of Guarantee. (a) If This Limited Guarantee is an unconditional and continuing guarantee of payment, not of collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent, Merger Sub or any other Person or whether Parent, Merger Sub or any other Person is joined in any such action or actions; provided that no recovery may be obtained against the Guarantor under this Limited Guarantee unless an action or actions have also been brought against all Other Guarantors under the Other Guarantees (except to the extent required that the bringing of such action against any such Other Guarantor is prohibited or stayed by any applicable Law or Order). The Guaranteed Party shall not release any of the Other Guarantors from any obligations under such Other Guarantees or amend or waive any provision of such Other Guarantees unless the Guaranteed Party offers to release the Guarantor under this Limited Guarantee in order for the Obligations same proportion or to be enforceable under applicable federal, state and other laws relating amend or waive the provisions of this Limited Guarantee in the same manner. Notwithstanding anything to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth contrary contained in this Section 2.03(a) Limited Guarantee or to reduceany other document, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such the Guarantor under this Agreement to Limited Guarantee and of the Other Guarantors under the Other Guarantees dated as of the date hereof, shall be enforceable under such laws several and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereofnot joint.
(b) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason The liability of the invalidityGuarantor under this Limited Guarantee shall, illegality to the fullest extent permitted under applicable Law, be absolute, irrevocable and unconditional, irrespective of:
(i) any release or unenforceability discharge of any obligation of Parent or Merger Sub in connection with the Merger Agreement resulting from any change in the corporate existence, structure or ownership of Parent or Merger Sub, any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or Merger Sub, or any other Person now or hereafter interested in the transactions contemplated by the Merger Agreement, other than as and if required by Section 2(a), or any of their respective assets;
(ii) any amendment or modification of the Obligations Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
(iii) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by ;
(iiv) the failure of the Collateral Agent or any other Secured Guaranteed Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document against Parent, Merger Sub or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document Guarantor or any other agreement, including Person primarily or secondarily liable with respect to any Guaranteed Obligation, other than as and if required by Section 2(a) (including in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding);
(v) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations;
(vi) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms); or
(vii) the value, genuineness, validity, illegality or enforceability of the Merger Agreement, the Other Limited Guarantees, the Equity Commitment Letter or the equity commitment letters entered into between the Sponsors (excluding the Guarantor, collectively, the “Other Sponsors”) and the Guaranteed Party, dated as of the date hereof (collectively, the “Other Equity Commitment Letters”), or any other agreement or instrument referred to herein or therein; other than in each case with respect to this Limited Guarantee, a breach by the Guaranteed Party of this Limited Guarantee, and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub could assert against the Company that would relieve Parent or Merger Sub of their applicable obligations under the Merger Agreement with respect to the Guaranteed Obligations.
(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, any Other Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party, subject to the provisions of Section 2(a).
(d) To the fullest extent permitted by Law, the Guarantor irrevocably waives promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any other notice not provided for herein (except for notices to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, (iii) insolvency, reorganization or similar proceeding, and the release offailure of the Guaranteed Party to so file shall not affect the Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, the Guarantor, or any impairment of or failure other Person for any reason whatsoever, the Guarantor shall remain liable hereunder in accordance with the terms hereof with respect to perfect any Lien on or security interest insuch Guaranteed Obligation as if such payment had not been made, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,so long as this Limited Guarantee has not terminated in accordance with its terms.
Appears in 2 contracts
Sources: Limited Guarantee (Tencent Holdings LTD), Limited Guarantee (Ocean Imagination L.P.)
Nature of Guarantee. (a) If and to the extent required in order for the Obligations to be enforceable under applicable federal, state and other laws relating to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each The Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to that its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability guarantee obligations under this AgreementGuarantee and Agreement shall be construed as continuing, absolute and unconditional without regard to (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.03(a) or to reduce, or request judicial relief reducing, the amount of its liability under this Agreement, and (iiia) the limitation set forth in this Section 2.03(a) may be enforced only validity, regularity or enforceability of any Credit Documents, any of the Guaranteed Obligations or any other collateral security therefor or guaranty or right of offset with respect thereto at any time or from time to time held by the extent required under such laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such laws and only by Administrative Agent or for the benefit of a creditorany Secured Party, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereof.
(b) Except for termination any defense, set-off or counterclaim (other than a defense of a payment or performance) which may at any time be available to or be asserted by the Borrower or the Guarantor against the Administrative Agent or any Secured Party, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Borrower or the Guarantor’s ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Guaranteed Obligations (other than payment or performance), in bankruptcy or in any other instance. The Guarantor's obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder with respect to any Guaranteed Obligations shall not be subject to affected by the existence, validity, enforceability, substitution, perfection, or extent of any reduction, limitation, impairment or termination collateral for any reason, including any claim of waiver, release, surrender, alteration or compromise, and such Guaranteed Obligations. The Administrative Agent shall be entitled but shall not be obligated to file any claim relating to the Guaranteed Obligations owing to it if the Borrower becomes subject to any defense a bankruptcy, reorganization or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) similar proceeding and the failure of the Collateral Administrative Agent to so file shall not affect the Guarantor's obligations hereunder. If any payment to the Administrative Agent made by the Borrower or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including Guarantor with respect to any Guaranteed Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable therefor hereunder (and its obligations reinstated hereunder if previously terminated) with respect to such Guaranteed Obligations as if such payment had not been made. The Guarantor reserves the right to assert defenses that the Borrower may have under the Credit Documents to payment of any Guaranteed Obligation other Guarantor under than
(i) defenses arising from the bankruptcy, insolvency, incapacity, liquidation or dissolution of the Borrower, and (ii) defenses arising out of the matters described above in this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent Section 2.03 or any other Secured Party for the Obligations circumstance or any event that might otherwise constitute a legal or equitable discharge of them,a guarantor or a surety generally.
Appears in 2 contracts
Sources: Guarantee and Agreement (Pg&e Corp), Guarantee and Agreement (Pacific Gas & Electric Co)
Nature of Guarantee. (a) If This Limited Guarantee is an unconditional and continuing guarantee of payment, not of collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent, Merger Sub or any other Person or whether Parent, Merger Sub or any other Person is joined in any such action or actions; provided that no action or actions may be brought (and no recovery may be obtained) against the Guarantor under this Limited Guarantee unless each of the Other Guarantors has fulfilled the Guaranteed Obligations (as defined in their respective Other Guarantees) or such action or actions have also been brought (and recovery is also obtained) simultaneously against the Other Guarantors under the Other Guarantees (except to the extent required that the bringing of such action or actions against any such Other Guarantor is prohibited or stayed by any applicable Law or Order). The Guaranteed Party shall not release any of the Other Guarantors from any obligations under their Other Guarantees or amend or waive any provision of such Other Guarantees unless the Guaranteed Party offers to release the Guarantor under this Limited Guarantee in order for the Obligations same proportion or to be enforceable under applicable federal, state and other laws relating amend or waive the provisions of this Limited Guarantee in the same manner. Notwithstanding anything to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth contrary contained in this Section 2.03(a) Limited Guarantee or to reduceany other document, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such the Guarantor under this Agreement to Limited Guarantee and of the Other Guarantors under the Other Guarantees shall be enforceable under such laws several and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereofnot joint.
(b) Except as set forth in Section 2(f) and except for termination in accordance with Section 5 of a Guarantor’s obligations hereunder as expressly provided in Section 7.15this Limited Guarantee, the obligations liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable Law, be absolute, irrevocable and unconditional, irrespective of:
(i) any release or discharge of any obligation of Parent or Merger Sub in connection with the Merger Agreement resulting from any change in the corporate existence, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent, Merger Sub or any of their respective assets, other than as and if required by Section 2(a);
(ii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of, any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof, in each case, to the extent that any of the foregoing does not have the effect of expanding the circumstances under which the Guaranteed Obligations are payable;
(iii) the existence of any claim, set-off or other right that the Guarantor hereunder shall not be subject to may have at any reductiontime against Parent, limitationMerger Sub or the Guaranteed Party, impairment whether in connection with any Guaranteed Obligation or termination for any reasonotherwise, including other than in each case (A) any claim of waiver, release, surrender, alteration or compromise, and shall not be subject set-off against or defense to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason the payment of the invalidityGuaranteed Obligations that may be available to Parent or Merger Sub under the Merger Agreement or (B) with respect to this Limited Guarantee, illegality or unenforceability a breach by the Guaranteed Party of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by this Limited Guarantee;
(iiv) the failure of the Collateral Agent or any other Secured Guaranteed Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwiseagainst Parent, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions ofMerger Sub, any Loan Document other Guarantor or any other agreement, including Person primarily or secondarily liable with respect to any Guaranteed Obligation, other than as and if required by Section 2(a) (including in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding);
(v) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations;
(vi) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms), other than in each case with respect to (A) any claim or set-off against or defense to the payment of the Guaranteed Obligations that may be available to Parent or Merger Sub under the Merger Agreement or (B) with respect to this Limited Guarantee, a breach by the Guaranteed Party of this Limited Guarantee; or
(vii) the value, genuineness, validity, illegality or enforceability of the Merger Agreement, the Other Guarantees, the Equity Commitment Letter, the equity commitment letters entered into between the Sponsors other than the Guarantor (the “Other Sponsors”) and Parent dated as of the date hereof (the “Other Equity Commitment Letters”), or any other agreement or instrument referred to herein or therein.
(c) To the fullest extent permitted under applicable Law and subject to Section 2(f) below, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other hand, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, any Other Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
(d) To the fullest extent permitted by Law and subject to Section 2(f) below, the Guarantor irrevocably waives promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any other notice not provided for herein (except for notices to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, insolvency, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, the Guarantor, the Other Guarantors or any other Person for any reason whatsoever, the Guarantor shall remain liable hereunder in accordance with the terms hereof with respect to such Guaranteed Obligation as if such payment had not been made, so long as this Limited Guarantee has not been terminated in accordance with its terms.
(f) Notwithstanding anything to the contrary contained in this Limited Guarantee, the Guaranteed Party hereby agrees that: (i) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Guaranteed Obligations as well as any defenses in respect of fraud or willful misconduct of the Guaranteed Party hereunder or any breach by the Guaranteed Party of any term hereof, and (ii) the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this AgreementLimited Guarantee, (iii) any claim, set-off, deduction, defense or release that Parent or Merger Sub would be entitled to assert against the release Guaranteed Party under the terms of, or any impairment with respect to, the Merger Agreement that would relieve each of or failure Parent and Merger Sub of its obligations under the Merger Agreement with respect to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,Guaranteed Obligations.
Appears in 1 contract
Sources: Limited Guarantee (Zhang Bing)
Nature of Guarantee. (a) If This Limited Guarantee is an unconditional and continuing guarantee of payment, not of collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent, Merger Sub or any other Person or whether Parent, Merger Sub or any other Person is joined in any such action or actions; provided that no recovery may be obtained against the Guarantor under this Limited Guarantee unless an action or actions have also been brought against all Other Guarantors under the Other Guarantees (except to the extent required that the bringing of such action against any such Other Guarantor is prohibited or stayed by any applicable Law or Order). The Guaranteed Party shall not release any of the Other Guarantors from any obligations under such Other Guarantees or amend or waive any provision of such Other Guarantees unless the Guaranteed Party offers to release the Guarantor under this Limited Guarantee in order for the Obligations same proportion or to be enforceable under applicable federal, state and other laws relating amend or waive the provisions of this Limited Guarantee in the same manner. Notwithstanding anything to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth contrary contained in this Section 2.03(a) Limited Guarantee or to reduceany other document, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such the Guarantor under this Agreement to Limited Guarantee and of the Other Guarantors under the Other Guarantees dated as of the date hereof, shall be enforceable under such laws several and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereofnot joint.
(b) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason The liability of the invalidityGuarantor under this Limited Guarantee shall, illegality to the fullest extent permitted under applicable Law, be absolute, irrevocable and unconditional, irrespective of:
(i) any release or unenforceability discharge of any obligation of Parent or Merger Sub in connection with the Merger Agreement resulting from any change in the corporate existence, structure or ownership of Parent or Merger Sub, any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or Merger Sub, or any other Person now or hereafter interested in the transactions contemplated by the Merger Agreement, other than as and if required by Section 2(a), or any of their respective assets;
(ii) any amendment or modification of the Obligations Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
(iii) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by ;
(iiv) the failure of the Collateral Agent or any other Secured Guaranteed Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document against Parent, Merger Sub or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document Guarantor or any other agreement, including Person primarily or secondarily liable with respect to any Guaranteed Obligation, other than as and if required by Section 2(a) (including in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding);
(v) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations;
(vi) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms); or
(vii) the value, genuineness, validity, illegality or enforceability of the Merger Agreement, the Other Limited Guarantees, the equity commitment letter entered into between any Sponsor (as defined in the Merger Agreement) and the Guaranteed Party, dated as of the date hereof (collectively, the “Equity Commitment Letters”), or any other agreement or instrument referred to herein or therein; other than in each case with respect to this Limited Guarantee, a breach by the Guaranteed Party of this Limited Guarantee, and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub could assert against the Company that would relieve Parent or Merger Sub of their applicable obligations under the Merger Agreement with respect to the Guaranteed Obligations.
(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, any Other Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party, subject to the provisions of Section 2(a).
(d) To the fullest extent permitted by Law, the Guarantor irrevocably waives promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any other notice not provided for herein (except for notices to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, (iii) insolvency, reorganization or similar proceeding, and the release offailure of the Guaranteed Party to so file shall not affect the Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, the Guarantor, or any impairment of or failure other Person for any reason whatsoever, the Guarantor shall remain liable hereunder in accordance with the terms hereof with respect to perfect any Lien on or security interest insuch Guaranteed Obligation as if such payment had not been made, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,so long as this Limited Guarantee has not terminated in accordance with its terms.
Appears in 1 contract
Nature of Guarantee. (a) If and The Guaranteed Party shall not be obligated to the extent required in order for the Obligations to be enforceable under applicable federal, state and other laws file any claim relating to the insolvency Obligation in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of debtorsthe Guaranteed Party to so file shall not affect the Guarantors’ obligations hereunder. This Limited Guarantee is an unconditional guarantee of payment in accordance with Section 1 hereof and not of collection, and a separate proceeding or proceedings may be brought and prosecuted against any of the Guarantors to enforce this Limited Guarantee, irrespective of whether any proceeding is brought against Parent, Merger Sub or any other Guarantor or whether Parent, Merger Sub or any other Guarantor are joined in any such proceeding or proceedings; provided, however, that in the event that multiple proceedings are brought, the maximum liability aggregate recovery in respect of the Obligation in all such proceedings shall not exceed with respect to any Guarantor such Guarantor’s Maximum Guarantor Percentage of such Guarantor hereunder shall be limited Obligation. Subject to the greatest amount which can lawfully be guaranteed other provisions of this Limited Guarantee, the Guaranteed Party hereby agrees that each Guarantor may assert, as a defense to, or release or discharge of, such payment by such Guarantor under such lawsthis Limited Guarantee, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to against an affirmative claim by the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduceGuaranteed Party, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.03(a) or to reduceAffiliates and Representatives, or request judicial relief reducingany other Person claiming by, the amount through or on behalf of its liability under this Agreementany of them, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereof.
(b) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiverclaim, release, surrenderrights, alteration remedies, set-offs and defenses that Parent or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to Merger Sub could assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to the Obligation pursuant to the terms of the Merger Agreement or pursuant to any applicable Law in connection therewith (other Guarantor under this Agreementthan any such rights, (iii) the release remedies, set-offs and defenses arising out of, due to, or any impairment of as a result of, the insolvency, bankruptcy, reorganization or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,similar proceeding affecting Parent).
Appears in 1 contract
Nature of Guarantee. (a) If and to the extent required in order for the Obligations to be enforceable under applicable federal, state and other laws relating to the insolvency The obligations of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.03(a) or to reduce, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereof.
(b) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability are independent of the Obligations of Tenant. A separate action may be brought or otherwiseprosecuted against Guarantor whether or not an action is brought or prosecuted against Tenant, or whether or not Tenant is joined in the action. Guarantor agrees that this Guarantee is and shall be construed as an absolute, unconditional, continuing and unlimited obligation of Guarantor without regard to and unaffected by the regularity, validity or enforceability of the Obligations and without regard to any subsequent course of conduct by Landlord, Tenant or Guarantor or any combination of them. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not in no way be discharged or impaired released, diminished or otherwise affected by (i) the failure reason of any voluntary or involuntary proceedings by or against Tenant in bankruptcy or for an arrangement or reorganization or for any other relief under any provision of the Collateral Agent Bankruptcy Act or any other Secured Party insolvency or debtor’s relief law from time to assert any claim time in effect. Guarantor shall have no right to cancel or demand or withdraw from its continuing guarantee of all Obligations. Notwithstanding the foregoing, nothing in this Guarantee shall grant to enforce the Landlord any right or remedy of action against the Guarantor unless the Landlord has given all required notices of default in respect of a specific default to the Tenant pursuant to the Lease and all applicable cure periods, if any, for the Tenant to cure such default(s) have expired. The Landlord shall permit the Guarantor to cure the Tenant’s default within the cure periods provided to the Tenant under the provisions of any Loan Document or otherwiseLease, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,if any.
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Nature of Guarantee. (a) If and to the extent required in order for the Obligations to be enforceable under applicable federal, state and other laws relating to the insolvency of debtors, the maximum liability of such Guarantor hereunder 3.1 This Guarantee shall be limited a continuing security and the Guarantor shall remain liable hereunder until the whole of the Secured Indebtedness has been repaid in full, notwithstanding the bankruptcy, liquidation, winding-up, incapacity or any change in the constitution of the Borrower and/or the Guarantor and/or any other party or any intermediate settlement of payment or satisfaction of any part of the Secured Indebtedness or any of the Guarantor's obligations hereunder or other matter whatsoever which but for this provision might operate to release or otherwise exonerate the greatest amount which can lawfully Guarantor from his obligations hereunder.
3.2 The Guarantor shall be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement liable as principal obligor and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (merely as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.03(a) or to reduce, or request judicial relief reducing, the amount of its liability under this Agreementsurety, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereof.
(b) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject discharged, reduced or affected by (a) the granting of time or indulgence, concession, compromise, consent or waiver whatsoever (including waiving any of the conditions precedent under the Loan Agreement) at any time given to the Borrower or any reductionperson; (b) the obtaining or holding by any Secured Party of any other Finance Documents or any other guarantee, security or indemnity given by other persons; (c) any amendment, modification, variation, extension (whether of maturity or otherwise), restatement (in each case, however fundamental and of whatsoever nature) or release made to the Loan Agreement, any other Finance Documents or any other guarantee or security or indemnity; (d) the illegality, invalidity or unenforceability of any obligation of the Borrower and/or other person to the Finance Documents; (e) the invalidity or irregularity in the execution of the Loan Agreement, any other Finance Documents or any other guarantee, security or indemnity given by other persons; (f) any lack of power of any person to enter into or perform any of its obligations under the Loan Agreement, any other Finance Documents or any other guarantee, security or indemnity; (g) the death, bankruptcy, insolvency, liquidation, incapacity, disability, limitation, impairment amalgamation, reconstruction or termination for any reason, including any claim change of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason constitution of the invalidityBorrower or any other person; (h) the exercising or non-exercising by the Security Agent of any powers, illegality rights, remedies or unenforceability of security against the Obligations Borrower or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired any other persons or otherwise affected by under the Loan Agreement, under any other Finance Documents or under any other security, guarantee or indemnity; (i) any release, discharge, waiver, exercise, omission to exercise, or settlement or compromise of any rights or claims against the failure of the Collateral Agent Borrower or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, persons; (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Guarantor under this Agreement, (iiij) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any impairment rights against, or security over assets of, the Borrower or any or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to perfect realise the full value of any Lien on or security interest in, any security held by security; (k) the Collateral Agent release of the Borrower or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; and/or (l) any act, omission or event which would or may but for the provisions of this Clause 3.2 operate to affect or discharge this Guarantee or the liability of the Guarantor hereunder.
3.3 This Guarantee shall be in addition to and not a substitute of any other guarantee or other security or indemnity now or hereafter held by or available to any Secured Party in respect of the Secured Indebtedness and the rights and remedies hereunder are cumulative and not exclusive for the Obligations or any of them,rights and remedies provided by law.
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Sources: Personal Guarantee (China Security & Surveillance Technology, Inc.)
Nature of Guarantee. The guarantee provided for in this Article 15 shall in all respects be a continuing, absolute, unconditional and irrevocable guarantee of payment when due and not of collection, and shall remain in full force and effect until the Secured Obligations Termination Date. Each of TFPM and TF Bermuda guarantees that the Secured Obligations of each other and each other Obligor will be paid strictly in accordance with the terms thereof, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Finance Parties with respect thereto. Each of TFPM and TF Bermuda renounces all benefits of discussion and division. The liability of each of TFPM and TF Bermuda hereunder shall be absolute, unconditional and irrevocable irrespective of, and without being released or limited by:
(a) If and to the extent required in order for the Obligations to be enforceable under applicable federalany lack of validity, state and other laws relating to the insolvency legality or enforceability of debtors, the maximum liability any provision of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Article VI. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.03(a) or to reduce, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.03(a) may be enforced only to the extent required under such laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other person entitled, under such laws, to enforce the provisions thereof.agreement;
(b) Except for termination the failure of a Guarantor’s obligations hereunder as expressly provided any Finance Party
(i) to assert any claim or demand or to enforce any right or remedy against any Obligor or any other Person (including any other guarantor) under the provisions of this agreement, or otherwise, or
(ii) to exercise any right or remedy against any other guarantor of, or collateral securing, any of the Secured Obligations;
(c) any change in Section 7.15the time, manner or place of payment of, or in any term of, all or any of the obligations Secured Obligations, or any other extension, compromise, indulgence or renewal of each Guarantor hereunder shall not be subject to any Secured Obligation;
(d) any reduction, limitation, impairment variation, impairment, discontinuance or termination of the Secured Obligations for any reasonreason (other than by reason of any payment which is not required to be rescinded), including any claim of waiver, release, discharge, surrender, alteration or compromise, and shall not be subject to (and each of TFPM and TF Bermuda hereby waive any defense right to or claim of) any defence or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or illegality, nongenuineness, irregularity, compromise, unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoingof, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other event or occurrence affecting, the Secured Party to assert any claim Obligations or demand or to enforce any right or remedy under the provisions otherwise (other than by reason of any Loan Document or otherwise, payment which is not required to be rescinded);
(iie) any amendment to, rescission, waiver, amendment waiver or other modification of, or any release from consent to any departure from, any of the terms of the Secured Obligations or provisions any guarantees or security;
(f) any addition, exchange, release, discharge, renewal, realization or non-perfection of any collateral security;
(g) any amendment to, or waiver or release or addition of, or consent to departure from, any Loan Document other guarantee held by the Finance Parties as security for any of the Secured Obligations;
(h) the loss of or in respect of or the unenforceability of any other guarantee or other security which the Finance Parties may now or hereafter hold in respect of the Secured Obligations, whether occasioned by the fault of a Finance Party or otherwise;
(i) any change in the name of an Obligor or in the constating documents, capital structure, capacity or constitution of an Obligor, the bankruptcy or insolvency of an Obligor, the sale of any or all of an Obligor’s business or assets or being consolidated, merged or amalgamated with any other Person; or
(j) any other circumstance (other than final payment in full) which might otherwise constitute a defence available to, or a legal or equitable discharge of any surety or any other agreement, including with guarantor. Any Secured Obligation which may not be recoverable from TFPM or TF Bermuda as guarantor shall be recoverable from TFPM or TF Bermuda as principal debtors in respect to any other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them,thereof.
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