Common use of CHANGES IN OBLIGATIONS, CERTAIN WAIVERS Clause in Contracts

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 14 contracts

Samples: Limited Guarantee (Baring Asia Private Equity Fund v Co-Investment L.P.), Limited Guarantee (Baring Asia Private Equity Fund v Co-Investment L.P.), Limited Guarantee (Giant Interactive Group Inc.)

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CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent and/or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the its obligations of Guarantor hereunder shall not be released or dischargeddischarged (except in the case where this Limited Guarantee is terminated in accordance with Section 8), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the TransactionsGuarantor, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent and/or Merger Sub with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent and/or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, or (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to of the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or and/or Merger Sub pursuant to the Merger Agreement or as expressly required pursuant to this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or and/or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Transactions Transactions, or the Equity Commitment Letter between the Guarantor Contribution and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)Support Agreement, against the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described set forth herein) and against the each Other Guarantors Guarantor under the its Other Guarantees Guarantee (subject to the limitations described set forth therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee (subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee (but subject to Section 3(a)), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 11 contracts

Samples: Limited Guarantee (Dongfeng Asset Management Co. Ltd.), Limited Guarantee (eHi Car Services LTD), Limited Guarantee (eHi Car Services LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent and/or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the its obligations of Guarantor hereunder shall not be released or dischargeddischarged (except in the case where this Limited Guarantee is terminated in accordance with Section 8), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the TransactionsGuarantor, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent and/or Merger Sub with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent and/or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, or (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to of the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or and/or Merger Sub pursuant to the Merger Agreement or as expressly required pursuant to this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or and/or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Transactions Transactions, or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Teamsport Topco Limited (the “Equity Commitment Letter” and and, together with the each other equity commitment letters letter between each Other Guarantor and Goliath Group Holdings Teamsport Topco Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described set forth herein) and against the each Other Guarantors Guarantor under the its Other Guarantees Guarantee (subject to the limitations described set forth therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee (subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee (but subject to Section 3(a)), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 10 contracts

Samples: Limited Guarantee (Zhang Ray Ruiping), Limited Guarantee (Zhang Ray Ruiping), Limited Guarantee (Zhang Ray Ruiping)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor Investor agrees that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the GuarantorInvestor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub MergerCo or any Other Guarantor or with any other person (including any Other Investors) interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Company and Parent, Merger Sub MergerCo or any such other person without in any way impairing or affecting the GuarantorInvestor’s obligations under this Limited GuaranteeLetter Agreement. The Guarantor Investor agrees that the its obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor MergerCo or any other person interested in the Transactions, transactions contemplated by the Merger Agreement (iiincluding any Other Investors); (b) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each caseprovided that any such change, except in the event of any rescission, waiver, compromise, consolidation or other amendment or modification shall be subject to the circumstances prior written consent of MergerCo to the extent required under which the Obligations are payableMerger Agreement), ; (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any entity or other person interested in the Guarantor with respect transactions contemplated by the Merger Agreement, including any Other Investors (provided that any such addition, substitution or release shall be subject to the Obligations as a result prior written consent of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect MergerCo to the Obligations extent required under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ); (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub MergerCo or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other GuarantorInvestors), ; (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub MergerCo or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other GuarantorInvestors), ; (vif) the existence of any claim, set-off or other right that which the Guarantor Investor may have at any time against Parent or Merger Sub MergerCo or the Guaranteed PartyCompany, whether in connection with the Obligations or otherwise, ; (viig) any other act or omission that may in any manner or to any extent vary the risk lack of or to the Guarantor or otherwise operate as a discharge enforceability of the Guarantor as a matter of law Merger Agreement or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, any agreement or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) instrument relating thereto; or (viiih) the adequacy of any other means the Guaranteed Party Company may have of obtaining payment related to of any of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor Investor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor Investor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Letter Agreement and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub pursuant be provided to MergerCo and its counsel in accordance with Section 8.7 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub MergerCo or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other GuarantorInvestors), and all suretyship defenses generally (other than fraud or willful misconduct by the Company or any of its subsidiaries, defenses to the payment of the Obligations that are available to Parent or Merger Sub MergerCo under the Merger Agreement or a breach by the Guaranteed Party Company of this Limited GuaranteeLetter Agreement, each of the foregoing defenses being retained by the Investor). The Guarantor Investor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Letter Agreement are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 7 contracts

Samples: Letter Agreement (Neubauer Joseph), Letter Agreement (Neubauer Joseph), Letter Agreement (Jp Morgan Partners Bhca Lp)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement, including the Merger (the “Transactions”) for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person Person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person Person interested in the Transactions, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or ), (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the ObligationsObligations or (ix) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement, in each case in accordance with its terms (other than by reason of fraud by the Company). (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 99 hereof), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and ), against the Other Guarantors under the Other Guarantees (subject to the limitations described therein) and against the Guarantor, Parent and Merger Sub for the Retained Claims under this Limited Guarantee (subject to the limitations described herein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub with respect to any of the Obligations that arise from the existence, payment, performance, performance or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or of remedy of the Guaranteed Party Company against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises arise in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, claim remedy or right, unless and until all of the Obligations and all other amounts payable the guaranteed obligations of the Other Guarantors under this Limited Guarantee the Other Guarantees shall have been paid in full in immediately available fundsfull. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment satisfaction in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeObligations, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from the other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and against all other amounts payable by the Guarantor under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to Section 3(a)) hereof, the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 7 contracts

Samples: Limited Guarantee, Limited Guarantee (Sequoia Capital China I Lp), Limited Guarantee (Sequoia Capital China I Lp)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) equity; or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeGuaranty), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it he will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or transactions contemplated thereby, the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)Parent, against the Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for claims against the Guarantor under this Limited Guarantee Guaranty (subject to the limitations described herein) ), for specific performance under the Equity Commitment Letter subject to the terms and conditions thereunder and against the Other Guarantors under the Other Guarantees Guaranties (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its his Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, proceeding that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it he may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee Guaranty or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee Guaranty but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved discharged in respect of its Guaranteed Percentage the Obligations as a result of such obligations under this Limited Guarantee and payment in full of the Obligations in accordance with their terms, (ii) the Guarantor shall have all defenses to the payment of its his obligations under this Limited Guarantee Guaranty (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations 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 of the terms or provisions hereof.

Appears in 6 contracts

Samples: Limited Guaranty (Baring Asia Ii Holdings (22) LTD), Limited Guaranty (Baring Asia Ii Holdings (22) LTD), Limited Guaranty (Baring Asia Ii Holdings (22) LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Amalgamation Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub Amalgamation Sub, any Other Guarantor or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Amalgamation Sub, any Other Guarantor Guarantor, or any other person interested in the Transactions, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Amalgamation Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable, in which case, the obligations of the Guarantor hereunder shall be affected only to the extent of such amendment to such circumstances), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, terms or a discharge or release of Parent with respect to the Obligations under the Merger Amalgamation Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Amalgamation Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Amalgamation Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Amalgamation Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Amalgamation Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, terms or a discharge of Parent with respect to the Obligations under the Merger Amalgamation Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Amalgamation Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices required to be provided to Parent or Merger Amalgamation Sub pursuant to the Merger Amalgamation Agreement or this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Amalgamation Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Amalgamation Sub under the Merger Amalgamation Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited GuaranteeSinobioway Bio-medicine Co., Ltd. and its Affiliates Controlling Sinobioway Bio-medicine Co., Ltd.) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Amalgamation Agreement, the Transactions or the Equity Commitment Letter between among the Guarantor Guarantor, Holdco and Goliath Group Holdings Limited Parent (the “Equity Commitment Letter” and together with the other equity commitment letters between among each Other Guarantor Guarantor, Holdco and Goliath Group Holdings LimitedParent, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for (i) claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein) and (ii) any other Retained Claims (as defined in Section 9). . (d) The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (de) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (de) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent Parent, Amalgamation Sub or Merger Sub any other Guarantor that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Amalgamation Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Amalgamation Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Amalgamation Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Amalgamation Sub under the Merger Amalgamation Agreement with respect to the 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.

Appears in 5 contracts

Samples: Limited Guarantee (Weidong Yin), Limited Guarantee (Weidong Yin), Limited Guarantee (Weidong Yin)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with ParentParent or Merger Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty or affecting the validity or enforceability of this Limited Guaranty. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Parent or Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated in the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations thereof; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor Guarantors with respect to the Guaranteed Obligations as a result of payment in full of the Guaranteed Obligations in accordance with their terms, a discharge or release of Parent with respect to the Guaranteed Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement) of the Guarantors or any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions person; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Parent or Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Sub; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations. ; or (bh) any act or omission by Parent or Merger Sub which directly or indirectly results in or aids in the discharge or release of Parent or Merger Sub or any portion of the Guaranteed Obligations by operation of law or otherwise. To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, effect or any right to require the marshalling of assets of Parent or Merger Sub or any other person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations (x) that are available to Parent or Merger Sub under the Merger Agreement or and this Limited Guaranty, (y) in respect of a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.Guaranty or

Appears in 4 contracts

Samples: Limited Guaranty (Idg-Accel China Growth Fund Ii L P), Limited Guaranty (Idg-Accel China Growth Fund Ii L P), Limited Guaranty (Right Advance Management Ltd.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make enter into any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and ParentMerger Agreement, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Guarantee. The liability of the Guarantor under this Guarantee shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (iexcept in the case where this Guarantee is terminated in accordance with Section 8 hereof): (a) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub or the Guarantor; (b) the invalidity or unenforceability of the Merger Agreement, but only to the extent resulting from any lack of corporate power or authority of Parent or Merger Sub, any Other Guarantor or any other person interested in officer of Parent or Merger Sub who executes the Transactions, merger agreement; (iic) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescissionextension, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations thereof; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (ivd) any change in the corporate legal existence, structure or ownership of Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including f) the addition, substitution or release of any Other Guarantor)Person now or hereafter liable with respect to the Guaranteed Obligations, to or from this Guarantee, the Merger Agreement or any related agreement or document; (vig) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be are available to Parent or Merger Sub under the Merger Agreement) ); or (viiih) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations. (b) . To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or and notices to Guarantor pursuant to this Limited Guarantee), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeGuarantee or fraud or willful misconduct of the Guaranteed Party). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives waives, and agrees not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Parent, Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith(subject to the Cap), including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and the Guarantor shall not exercise any such rights unless and until all of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundsfull. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable by the Guarantor under this Limited GuaranteeGuarantee (which shall be subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)or otherwise, the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to under Sections 8.2, 8.3(c), 8.3(d), 9.11 and 9.12(c) of the Parent Termination FeeMerger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Agreement, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or or Merger Sub under the Merger Agreement with respect to the Obligations Guaranteed Obligations, as well as any defenses in respect of any fraud or willful misconduct of the Guaranteed Party hereunder or any its Affiliates, or breach by the Guaranteed Party of any term of the terms or provisions hereof.

Appears in 4 contracts

Samples: Limited Guarantee (Chindex International Inc), Limited Guarantee (TPG Asia Advisors VI, Inc.), Limited Guarantee (TPG Asia Advisors VI, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or dischargeddischarged (except in the case where this Limited Guarantee is terminated in accordance with Section 8 hereof), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the TransactionsGuarantor, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable, in which case, the obligations of Guarantor hereunder shall be affected only to the extent of such amendment of circumstances), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent by the Company with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent by the Company with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ), or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations Obligation incurred and all other notices of any kind (other than notices required to be provided to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guaranteeas defined below) not to institute, directly or indirectly, any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Transactions Transactions, or the Equity Commitment Letter between the Guarantor Guarantor, New WuXi Life Science Limited and Goliath Group New WuXi Life Science Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor or Group & Cloud Limited, as applicable, and Goliath Group New WuXi Life Science Limited and New WuXi Life Science Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and ), claims against the Other Guarantors under the Other Guarantees (subject to the limitations described therein) and claims against the Guarantor, New WuXi Life Science Holdings Limited (“Holdco”), Parent and Merger Sub for the Retained Claims (as defined in Section 9) (subject to the limitations described herein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee or the Merger Agreement is illegal, invalid or unenforceable in accordance with its termsapplicable terms (but, in the case of the Merger Agreement, only to the extent resulting from any lack of corporate power or authority of Parent or Merger Sub, or any officer of Parent or Merger Sub who executes the Merger Agreement and, for the avoidance of doubt, other than by reason of fraud of the Company). For purposes of this Limited Guarantee, “Affiliates” of any person means any person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such person. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundsfunds by the Guarantor (or by any other person, including Parent or Merger Sub, on behalf of the Guarantor). If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee (subject to the Cap) by the Guarantor (or by any other person, including Parent or Merger Sub, on behalf of the Guarantor), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their payment obligations by the Company with respect to the Parent Termination FeeObligations, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses in respect of fraud or willful misconduct of the Guaranteed Party or its Affiliates hereunder or any breach by the Guaranteed Party of any term hereof.

Appears in 4 contracts

Samples: Limited Guarantee (WuXi PharmaTech (Cayman) Inc.), Limited Guarantee (WuXi PharmaTech (Cayman) Inc.), Limited Guarantee (WuXi PharmaTech (Cayman) Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. 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 except to the extent the Guarantor under this Limited Guarantee is released or the provisions of this Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantors under the Other Guarantees shall be several and not joint. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or dischargeddischarged (except in the case where this Limited Guarantee is terminated in accordance with Section 8 hereof or as set forth in the last sentence of Section 3(d) hereof), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the TransactionsGuarantor, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable)Obligations, (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (viv) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (viv) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (viivi) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, or a discharge of Parent with respect to the Obligations under the Merger Agreement), or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiivii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor hereby waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the ObligationsObligations guaranteed hereunder, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in liable with respect to the Transactions (including any Other Guarantor)Obligations, and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, institute any proceeding asserting or assert as a defense in any proceedingproceeding that this Limited Guarantee or the Merger Agreement is illegal, subject to clause invalid or unenforceable in accordance with its applicable terms (ii) but, for the avoidance of doubt, other than by reason of fraud of the last sentence Company as determined in a final, non-appealable judicial or arbitral decision). For purposes of clause this Limited Guarantee, “Affiliates” of any person means any person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such person. The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (dincluding reasonable fees and expenses of counsel) hereofincurred by the Guaranteed Party in connection with the enforcement of its rights hereunder if (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its termsterms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundsfunds to the Guaranteed Party by the Guarantor (or by any other person, including Parent or Merger Sub, on behalf of the Guarantor). If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee (subject to the Cap) to the Guaranteed Party by the Guarantor (or by any other person, including Parent or Merger Sub, on behalf of the Guarantor), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the payment of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, until they are paid in full (subject to the Cap) or to be held as collateral for the Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to subsection (iv) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their payment obligations with respect to the Parent Termination FeeObligations by the satisfaction in full thereof or pursuant to a written agreement with the Guaranteed Party, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses defense in respect of fraud or willful misconduct of the Guaranteed Party hereunder or its Affiliates hereunder, or any breach by the Guaranteed Party of any term hereof, in each case, as determined in a final, non-appealable judicial or arbitral decision.

Appears in 4 contracts

Samples: Limited Guarantee (iKang Healthcare Group, Inc.), Limited Guarantee (iKang Healthcare Group, Inc.), Limited Guarantee (Top Fortune Win Ltd.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by, among other things, (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any the Other Guarantor Guarantors or any other person interested in the Transactions, Person; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any Person (whether or not such Person is interested in the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), including, without limitation, the Other Guarantors; (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now Person (whether or hereafter liable with respect to any portion of the Obligations or otherwise not such Person is interested in the Transactions (including any Other Guarantortransactions contemplated by the Merger Agreement), including, without limitation, the Other Guarantors; (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in (including, without limitation, the Transactions Other Guarantors); (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or Sub, the Guaranteed PartyParty or any other Person, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) . To the fullest extent permitted by Law, Law the Guarantor hereby irrevocably and unconditionally expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Without limiting, and in furtherance of, the foregoing, the Guarantor hereby irrevocably and unconditionally expressly waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person Person (whether or not such Person is interested in the Transactions (including any transactions contemplated by the Merger Agreement), including, without limitation, the Other Guarantor)Guarantors, and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Subsidiaries or Affiliates, defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor hereby acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions transactions contemplated thereby or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)Financing Commitments, against the Guarantor or any Non-Recourse Party (as defined in Section 99 hereof), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein)Guarantees. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding or bring any other claim asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) . The Guarantor hereby irrevocably and unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any such other Person (including the Other GuarantorGuarantors), whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any such other Person (including the Other GuarantorGuarantors), directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 4 contracts

Samples: Limited Guarantee (Smith & Wollensky Restaurant Group Inc), Limited Guarantee (Smith & Wollensky Restaurant Group Inc), Limited Guarantee (Smith & Wollensky Restaurant Group Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the ObligationsObligation, and may also make any agreement with Parent, Merger Sub Buyer or any Other Guarantor Person liable with respect to the Obligation or any other person interested in the Transactions transactions contemplated in the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub Buyer or any such other person Person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Buyer or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations Obligation or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligation; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any Person primarily or secondarily liable for the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligation; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub Buyer or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligation; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Buyer or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligation; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub Buyer or the Guaranteed PartyParty or any of its Affiliates, whether in connection with the Obligations Obligation or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related of the Obligation; (h) any other act or omission which might in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a release or discharge of the Guarantor, all of which may be done without notice to the Obligations. Guarantor; or (bi) any other event or circumstances, whether similar or dissimilar to the foregoing (other than final payment in full of the Obligation). To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the ObligationsObligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion the incurrence of the Obligations incurred Obligation and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub Buyer or any other person interested in Person primarily or secondarily liable with respect to the Transactions (including any Other Guarantor)Obligation, and all suretyship defenses generally (other than defenses to the payment of the Obligations Obligation that are available to Parent or Merger Sub Buyer under the Merger Agreement or a breach by the Guaranteed Party of this Limited the Guarantee). The Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Guaranteed Party to disclose to the Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of Buyer or any of its Affiliates now or hereafter known by the Guaranteed Party. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent Buyer or Merger Sub any other Person liable with respect to the Obligation that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations obligation under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub Buyer or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub Buyer or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations Obligation and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations Obligation and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations Obligation and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the Obligations Obligation or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their obligations Buyer’s representations, warranties, covenants or agreements contained in the Merger Agreement are waived in writing by the Guaranteed Party, then such waiver shall extend to the Guarantor solely with respect to the Parent Termination Feesuch representation(s), the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (iiwarranty(ies), covenant(s) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableor agreement(s) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofwaived thereby.

Appears in 4 contracts

Samples: Guarantee (Ipayment Inc), Guarantee (Ipayment Inc), Guarantee (Ipayment Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person thereof without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, Guarantor; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge substitution or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations; (viii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms); or (ix) the value, a discharge genuineness, validity, regularity, illegality or enforceability of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, Law the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to the Merger Agreement or notices expressly required to be provided pursuant to this Limited Guarantee), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions transactions contemplated thereby or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Giovanna Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for claims against except, with respect to the Guarantor under this Limited Guarantee or any particular Non-Recourse Party, as the case may be, for Retained Claims (subject to the limitations described as defined in Section 9 herein) and against arising under, or in connection with, the Other Guarantors under Merger Agreement, the Other Guarantees (subject transactions contemplated thereby or such Equity Commitment Letter to which the limitations described therein)Guarantor or such Non-Recourse Party is a party, as the case may be. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or such other person (including any Other Guarantor), whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or such other person (including any Other Guarantor), directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableGuarantor’s Cap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 4 contracts

Samples: Limited Guarantee (Focus Media Holding LTD), Limited Guarantee (Focus Media Holding LTD), Limited Guarantee (Focus Media Holding LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with ParentParent or Merger Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub Sub, or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuarantee or affecting the validity or enforceability of this Limited Guarantee provided, that the consent of the Guarantor shall be required to the extent it has the effect of expanding the circumstances under which the obligations will be payable. The Guaranteed Party shall not release any of the other guarantors (if any, the “Other Guarantors”) under other limited guarantees in the form substantially the same with this Limited Guarantee (the “Other Guarantees”) from any obligations under such Other Guarantees or amend or waive any provision of such Other Guarantees except to the extent the Guarantor under this Limited Guarantee is released or the provisions of the Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. The Guarantor agrees that that, except as set forth in the last sentence of the Section 3(d) and except for termination in accordance with Section 8 of this Limited Guarantee, the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by, without duplication, (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the corporate existence, structure or ownership of Parent, Merger Sub, or any other person interested in the transactions contemplated by the Merger Agreement; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement; (iv) except as expressly provided herein, 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 the Obligations or otherwise; (v) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any rescissionrecession, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), ; (iiivi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Obligations; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as an addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in transactions contemplated by the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor Agreement as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) Agreement or in respect of a breach by the Guaranteed Party of Section 8 hereof); or (viii) the adequacy value, validity, legality or enforceability of the Merger Agreement, the Other Guarantees, or any other means the Guaranteed Party may have of obtaining payment related agreement or instrument referred to the Obligationsherein or therein. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any portion of the Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or and Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling marshaling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than valid defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeAgreement). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundsfunds (or by any other person, including Merger Sub, on behalf of the Guarantor). If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. . (d) Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to clause (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) that to the extent Parent and or Merger Sub are is relieved of all or any portion of their its payment obligations with respect to under the Parent Termination FeeMerger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such corresponding obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 3 contracts

Samples: Limited Guarantee (Genetron Holdings LTD), Limited Guarantee (Genetron Holdings LTD), Limited Guarantee (Tianjin Kangyue Business Management Partnership (Limited Partnership))

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with ParentParent or Merger Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescissionrecession, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Guaranteed Obligations are payable), ; (iii) the any addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligations as a result of payment in full of the Guaranteed Obligations in accordance with their terms, a discharge or release of Parent with respect to the Guaranteed Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Guaranteed Obligations as a result of payment in full of the Guaranteed Obligations in accordance with their terms, a discharge of Parent with respect to the Guaranteed Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement) or ); (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. Guaranteed Obligations or (bix) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement. To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, effect or any right to require the marshalling of assets of Parent or Merger Sub or any other person Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ) and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (db) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and the Guarantor shall not exercise any such rights unless and until all of the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee (which shall be subject to the Cap) shall have been indefeasibaly paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee (which shall be subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Guaranteed Obligations or other amounts payable under this Limited Guarantee thereafter arising. . (c) Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to Section 3(a3(a)(v), the Guaranteed Party hereby agrees that: that (i) to the extent that Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeGuaranteed Obligations under the Merger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such corresponding payment obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations Guaranteed Obligations, as well as any defenses in respect of any fraud or willful misconduct of the Guaranteed Party or its Affiliates. (d) No failure on the part of the Guaranteed Party to exercise, and no delay in exercising, any right, remedy or power hereunder or under the Merger Agreement shall operate as a waiver thereof; nor shall any breach single or partial exercise by the Guaranteed Party of any term hereofright, remedy or power hereunder preclude any other or future exercise of any right, remedy or power hereunder. Each and every right, remedy and power hereby granted to the Guaranteed Party or allowed it by Law shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed Party at any time or from time to time. The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Party’s rights against, Parent or any other person (including any Other Guarantor) liable for any Guaranteed Obligations prior to proceeding against the Guarantor hereunder, and the failure by the Guaranteed Party to pursue rights or remedies against Parent or Merger Sub 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.

Appears in 3 contracts

Samples: Limited Guarantee (Shanda Games LTD), Limited Guarantee (Shanda Games LTD), Limited Guarantee (Shanda Games LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in Person (including the Transactions Guarantor) liable with respect to the Guaranteed Obligation for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, and shall not be conditioned upon or otherwise affected by (iwhether or not the Guarantor has any knowledge or notice thereof and without further consent of the Guarantor): (a) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person interested in the Transactions, Guarantor; (iib) any change in the time, place place, manner or manner terms of payment or performance of any portion of the Obligations Guaranteed Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement Transaction Agreement, the Equity Commitment Letter or the Other Investors Equity Commitment Letters, in each case, that are made in accordance with the terms thereof thereof; (c) any renewal, rescission, waiver, compromise or other amendment or modification of any terms or provisions of the Transaction Agreement, the Equity Commitment Letter, the Other Investors Equity Commitment Letters, the Other Investors Limited Guarantees or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (Guaranteed Obligations, in each case, except in the event of any amendment to the circumstances under which the Obligations that are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations made in accordance with their termsthe terms thereof; (d) any change in the legal existence, a discharge structure or release ownership of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person other Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Transaction Agreement, or any release or discharge of any obligation of Parent contained in the Transaction Agreement resulting therefrom; (including any Other Guarantor), (ive) any change in the corporate existenceinsolvency, structure bankruptcy, liquidation, dissolution, reorganization, sale or ownership of Parent, Merger Sub other similar proceeding affecting Parent or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including transactions contemplated by the Transaction Agreement, or any Other Guarantor)disposition of all or substantially all of the assets, (v) any insolvencymarshalling of the assets and liabilities, bankruptcyreceivership, reorganization assignment for the benefit of creditors, arrangement, composition with creditors or readjustment or other similar proceeding affecting Parent, Merger Sub or any other person Person liable with respect to the Guaranteed Obligation; (f) the addition, substitution or release of any Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Transaction Agreement; (including g) the adequacy of any Other Guarantor), other means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations; (vih) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, ; or (viii) any other act or omission that may or might in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity equity, all of which may be done without notice to Guarantor (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations except for notices required hereunder or under the Merger Transaction Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) ). To the fullest extent permitted by Law, the Guarantor hereby irrevocably and expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor hereby irrevocably waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices required to be issued to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeTransaction Agreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, effect or any right to require the marshalling of assets of Parent or Merger Sub or any other person Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor)transactions contemplated by the Transaction Agreement, and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Transaction Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Parent, Merger Sub or any other Person liable with respect to the Guaranteed Obligation that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorsuch other Persons, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and the Guarantor shall not exercise any such rights unless and until all of the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee (which shall be subject to the Cap) shall have been indefeasibly paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable by the Guarantor under this Limited GuaranteeGuarantee (which shall be subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject or otherwise, other than as set forth in clause (e) of the second sentence of this Section 3(a)3, the Guaranteed Party hereby agrees that: (i) to that the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses defense to the payment of its the Guarantor’s obligations under this Limited Guarantee (which in any event shall be subject to the Cap Cap) that the Guaranteed Obligations are not due and owing under and pursuant to the express terms of the Transaction Agreement shall be available to the Guarantor, to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Transaction Agreement with respect to the Obligations as well as any defenses in respect of fraud or willful misconduct Guaranteed Obligations. No failure on the part of the Guaranteed Party Party, to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver hereof, nor shall any single or any breach partial exercise by the Guaranteed Party Party, of any term right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power (subject to the Cap). Without limiting the express limitations set forth hereunder in this Limited Guarantee, each and every right, remedy and power hereby granted to the Guaranteed Party, or allowed to it by Law, in equity or by other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed Party, at any time or from time to time. Subject to the Cap and the other terms and conditions hereof, the Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Party’s rights against, Parent or any other person liable for the Guaranteed Obligations or any portion of the Guaranteed Obligations, prior to proceeding against Guarantor.

Appears in 3 contracts

Samples: Limited Guarantee (Covetrus, Inc.), Limited Guarantee (Covetrus, Inc.), Limited Guarantee (Covetrus, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person thereof without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, Guarantor; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge substitution or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) except as provided herein, the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations; (viii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms); or (ix) the value, a discharge genuineness, validity, regularity, illegality or enforceability of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, Law the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to the Merger Agreement or notices expressly required to be provided pursuant to this Limited Guarantee), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions transactions contemplated thereby or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited Holdco (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for claims against except, with respect to the Guarantor under this Limited Guarantee or any particular Non-Recourse Party, as the case may be, for Retained Claims (subject to the limitations described as defined in Section 9 herein) and against arising under, or in connection with, the Other Guarantors under Merger Agreement, the Other Guarantees (subject transactions contemplated thereby or such Equity Commitment Letter to which the limitations described therein)Guarantor or such Non-Recourse Party is a party, as the case may be. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or such other person (including any Other Guarantor), whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or such other person (including any Other Guarantor), directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableGuarantor’s Cap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 3 contracts

Samples: Limited Guarantee (China Ming Yang Wind Power Group LTD), Limited Guarantee (China Ming Yang Wind Power Group LTD), Limited Guarantee (China Ming Yang Wind Power Group LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, Guarantor; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), ; (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or Sub, the Guaranteed PartyParty or any of their affiliates, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to any of the Obligations. ; (bh) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement; or (i) any discharge of the Guarantor as a matter of Law or equity (other than as a result of the payment of the Obligations in accordance with the terms hereof). To the fullest extent permitted by Law, Law the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Subsidiaries or affiliates, defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions transactions contemplated thereby or the Equity Commitment Letter amended and restated equity commitment letters between the Guarantor and Goliath Group Holdings Limited Holding, dated as of the date hereof (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 910 herein), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein)Guarantees. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) . The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or such other Person (including any Other Guarantor), whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or such other Person (including any Other Guarantor), directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been previously paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 3 contracts

Samples: Limited Guarantee (LVB Acquisition, LLC), Limited Guarantee (LVB Acquisition, LLC), Limited Guarantee (LVB Acquisition, LLC)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with ParentParent or Merger Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub Sub, or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuarantee or affecting the validity or enforceability of this Limited Guarantee provided, that the consent of the Guarantor shall be required to the extent it has the effect of expanding the circumstances under which the obligations will be payable. The Guaranteed Party shall not release any of the other guarantors (if any, the “Other Guarantors”) under other limited guarantees in the form substantially the same with this Limited Guarantee (the “Other Guarantees”) from any obligations under such Other Guarantees or amend or waive any provision of such Other Guarantees except to the extent the Guarantor under this Limited Guarantee is released or the provisions of the Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. The Guarantor agrees that that, except as set forth in the last sentence of the Section 3(d) and except for termination in accordance with Section 8 of this Limited Guarantee, the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by, without duplication, (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the corporate existence, structure or ownership of Parent, Merger Sub, or any other person interested in the transactions contemplated by the Merger Agreement; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement; (iv) except as expressly provided herein, 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 the Obligations or otherwise; (v) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any rescissionrecession, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), ; (iiivi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Obligations; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as an addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in transactions contemplated by the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor Agreement as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Parent under the Merger AgreementAgreement or in respect of a breach by the Guaranteed Party of Section 8 hereof) ; or (viii) the adequacy value, validity, legality or enforceability of the Merger Agreement, the Other Guarantees, or any other means the Guaranteed Party may have of obtaining payment related agreement or instrument referred to the Obligationsherein or therein. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any portion of the Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or and Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling marshaling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than valid defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeAgreement). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundsfunds (or by any other person, including Merger Sub, on behalf of the Guarantor). If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. . (d) Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to clause (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) that to the extent Parent and or Merger Sub are is relieved of all or any portion of their its payment obligations with respect to under the Parent Termination FeeMerger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such corresponding obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 3 contracts

Samples: Limited Guarantee (Genetron Holdings LTD), Limited Guarantee (Genetron Holdings LTD), Limited Guarantee (Tianjin Kangyue Business Management Partnership (Limited Partnership))

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Purchaser or any other person interested in the Transactions, (ii) any change in transactions contemplated by the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Acquisition Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any other guarantor pursuant to a limited guarantee dated as of the date hereof to be entered into between the Guaranteed Party and such other guarantor (the “Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vb) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Purchaser or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Acquisition Agreement (including any the Other Guarantor), ; (vic) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub Purchaser or the Guaranteed Party, whether in connection with the Obligations Obligation or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiid) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) Obligation. To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the ObligationsObligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations Obligation incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub pursuant be provided to Purchaser and its counsel Weil, Gotshal & Xxxxxx LLP in accordance with Section 6.6 of the Merger Agreement or this Limited GuaranteeAcquisition Agreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub Purchaser or any other person interested in the Transactions transactions contemplated by the Acquisition Agreement (including any the Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its subsidiaries or affiliates, or defenses to the payment of the Obligations Obligation under the Acquisition Agreement that are available to Parent or Merger Sub under the Merger Agreement or a Purchaser for breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Acquisition Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions Acquisition Agreement or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)transactions contemplated thereby, against the any Guarantor Affiliate or any Non-Recourse Party Purchaser Affiliate (as defined in Section 9), below) except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors Guarantor under its written limited guarantee delivered contemporaneously herewith, and the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. , subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors’ rights generally, and general equitable principles (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or whether considered in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises a proceeding in equity or under contractat Law); provided however, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid not limit the remedies provided for in full in immediately available funds. If any amount shall be paid to the Guarantor in violation Section 6.13(b) of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arisingAcquisition Agreement. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are Purchaser is relieved of any of their its obligations with respect to under the Parent Termination FeeAcquisition Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 3 contracts

Samples: Limited Guarantee (Ayala Corp), Limited Guarantee (eTelecare Global Solutions, Inc.), Limited Guarantee (EGS Acquisition Co LLC)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party mayCompany, in its sole discretion, Zac or the Shareholder Representative may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parentthe Company, Merger Sub Zac or any Other Guarantor or any other person interested in the Transactions Shareholder Representative for the amendment, modification, extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting any of the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the its obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party Shareholder Representative or the Selling Shareholders to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, Company; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations thereof; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (ivc) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Company; (including any Other Guarantor), (vd) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Company; (including any Other Guarantor), (vie) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub Zac, the Company or the Guaranteed PartySelling Shareholders, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiif) the adequacy of any other means the Guaranteed Party Shareholder Representative or the Selling Shareholders may have of obtaining payment related to the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartyShareholder Representative or the Selling Shareholders. The Guarantor hereby waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)Company, and all suretyship defenses generally (other than fraud or willful misconduct by the Company or any of its subsidiaries or affiliates or defenses to the payment of the Obligations that are available to Parent or Merger Sub the Company under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeAgreement). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants expressly and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent the Company or Merger Sub Zac that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party Shareholder Representative and the Selling Shareholders against Parent, Merger Sub or any Other Guarantorthe Company, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorthe Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed PartyShareholder Representative for the benefit of the Selling Shareholders, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 3 contracts

Samples: Remainder Payment Guarantee, Remainder Payment Guarantee (Zones Inc), Remainder Payment Guarantee (Lalji Firoz)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person thereof without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, Guarantor; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge substitution or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) except as provided herein, the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations; (viii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms); or (ix) the value, a discharge genuineness, validity, regularity, illegality or enforceability of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, Law the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to the Merger Agreement or notices expressly required to be provided pursuant to this Limited Guarantee), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions transactions contemplated thereby or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited Parent (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for claims against except, with respect to the Guarantor under this Limited Guarantee or any particular Non-Recourse Party, as the case may be, for Retained Claims (subject to the limitations described as defined in Section 9 herein) and against arising under, or in connection with, the Other Guarantors under Merger Agreement, the Other Guarantees (subject transactions contemplated thereby or such Equity Commitment Letter to which the limitations described therein)Guarantor or such Non-Recourse Party is a party, as the case may be. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or such other person (including any Other Guarantor), whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or such other person (including any Other Guarantor), directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableGuarantor’s Cap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 3 contracts

Samples: Limited Guarantee (China Ming Yang Wind Power Group LTD), Limited Guarantee (China Ming Yang Wind Power Group LTD), Limited Guarantee

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, Seller may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of for payment or performance of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Buyer for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Seller and Parent, Merger Sub or such other person Buyer without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released released, modified or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party Seller to assert any claim or demand or to enforce any right or remedy against ParentBuyer, Merger SubGuarantor, any Other Guarantor or any other person interested in the Transactions, others; (ii) any change in the time, place or manner of payment or performance of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Purchase Agreement; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions (including any Other Guarantor), transactions contemplated by the Purchase Agreement; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub Buyer or of any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions (including any Other Guarantor), transactions contemplated by the Purchase Agreement; (v) any voluntary or involuntary insolvency, bankruptcy, reorganization reorganization, liquidation, dissolution, receivership, marshaling of assets, assignment for the benefit of creditors or other similar proceeding affecting Parent, Merger Sub Buyer or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions (including any Other Guarantor), transactions contemplated by the Purchase Agreement; (vi) the existence of any claim, set-off or other right that the which Guarantor may have at any time against Parent or Merger Sub or the Guaranteed PartySeller, whether in connection with the Obligations or otherwise, ; (vii) the adequacy of any other means Seller may have of obtaining payment or performance of the Obligations; (viii) the value, genuineness, validity or enforceability of the Purchase Agreement or any other agreement or instrument referred to herein or therein; or (ix) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law Law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full and performance of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations). (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartySeller. The Guarantor hereby waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices required to Parent or Merger Sub pursuant to be given under the Merger Agreement or this Limited GuaranteePurchase Agreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling marshaling of assets of Parent or Merger Sub Buyer or any other person Person interested in the Transactions transactions contemplated by the Purchase Agreement, all rights of subrogation, indemnification or contribution (including whether arising by contract or operation of law, including, without limitation, any Other Guarantor)such right under bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights) arising prior to the satisfaction in full of the Obligations and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Purchase Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its respective Affiliates not to institute, directly or indirectly, any proceeding proceedings asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not , subject to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved effects of any of their obligations with respect to the Parent Termination Feebankruptcy, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors’ rights generally, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee general equitable principles (which whether considered in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses a proceeding in respect of fraud equity or willful misconduct of the Guaranteed Party hereunder or any breach by the Guaranteed Party of any term hereofat Law).

Appears in 3 contracts

Samples: Guaranty (Algonquin Power & Utilities Corp.), Guaranty (Atmos Energy Corp), Guaranty (Atmos Energy Corp)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent and/or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the its obligations of Guarantor hereunder shall not be released or dischargeddischarged (except in the case where this Limited Guarantee is terminated in accordance with Section 8), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the TransactionsGuarantor, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent and/or Merger Sub with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent and/or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, or (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to of the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or and/or Merger Sub pursuant to the Merger Agreement or as expressly required pursuant to this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or and/or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Transactions or Transactions, the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Teamsport Topco Limited (the “Equity Commitment Letter” and and, together with the each other equity commitment letters letter between each Other Guarantor and Goliath Group Holdings Teamsport Topco Limited, collectively, the “Equity Commitment Letters”), or the Contribution and Support Agreement, against the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described set forth herein) and against the each Other Guarantors Guarantor under the its Other Guarantees Guarantee (subject to the limitations described set forth therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee (subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee (but subject to Section 3(a)), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 3 contracts

Samples: Limited Guarantee (Taylor Andrew C), Limited Guarantee (Zhang Ray Ruiping), Limited Guarantee (BPEA Teamsport LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or with any other person (including any Other Guarantor) interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or any such other person without in any way impairing or affecting the Guarantor’s 's obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person interested in the Transactions, transactions contemplated by the Merger Agreement (iiincluding any Other Guarantor); (b) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other other Guarantor), ; (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Parent, Merger Sub pursuant to and Proskauer Rose LLP in accordance with Section 10.02 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Subsidiaries, defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)transactions contemplated thereby, against any Guarantor or any of its former, current or future directors, officers, agents, Affiliates (other than Parent or Merger Sub) or employees, or against any of the former, current or future general or limited partners, members, managers or stockholders of the Guarantor or any Non-Recourse Party Affiliate thereof (as defined in Section 9other than Parent or Merger Sub) or against directors, officers, agents, Affiliates, general or limited partners, members, managers or stockholders of any of the foregoing (other than Parent or Merger Sub), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under their written limited guarantees, and the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its respective Affiliates not to institute, directly or indirectly, any proceeding proceedings asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. , subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally, and general equitable principles (d) whether considered in a proceeding in equity or at law). The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor) that arise from the existence, payment, performance, or enforcement of the Guarantor’s 's obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantorsuch other person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorsuch other person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be he paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their obligations with respect to under Section 9.03(f) of the Parent Termination FeeMerger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 3 contracts

Samples: Limited Guarantee (Hidary Group Acquisitions, LLC), Limited Guarantee (Hidary Group Acquisitions, LLC), Limited Guarantee (Hidary Group Acquisitions, LLC)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that that, subject to the terms hereof, the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the ObligationsObligations in accordance with Section 9.11 of the Merger Agreement, and may also make enter into any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof of the Merger Agreement or of any agreement between the Guaranteed Party Party, on the one hand, and ParentParent or Merger Sub, on the other hand, in each case in accordance with the terms of the Merger Sub or such other person Agreement, without in any way impairing or affecting the Guarantor’s obligations under as provided in this Limited Guarantee. The Guaranteed Party shall not release any of the Other Guarantors from, or extend the time of payment of, any obligations under such Other Guarantees or amend or waive any provision of such Other Guarantees except to the extent the Guarantor under this Limited Guarantee is released, the payment obligation under this Limited Guarantee is extended or the provisions of the Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. The Guarantor agrees that that, except as set forth in clause (i) in the last sentence of Section 3(c) and except for termination in accordance with Section 8 of this Limited Guarantee, the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any escrow arrangement or other security therefor, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made (in each case, to the extent effected in accordance with the terms thereof of the Merger Agreement) or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (Obligations, in each case, except in the event of any amendment to the circumstances under which extent any of the Obligations are payable), foregoing does not have the effect of increasing the Cap; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Percentage of the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement or any of their respective assets or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Obligations; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the applicable Obligations in accordance with their its terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ); or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to be provided to Parent or Merger Sub pursuant to in accordance with the Merger Agreement or Agreement, this Limited GuaranteeGuarantee or any other agreement or instrument delivered herewith or therewith), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar applicable Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally generally. Notwithstanding anything herein to the contrary, each of the following defenses shall be retained by the Guarantor: (other than x) defenses to the payment of the Obligations that are available to Parent or Parent, Merger Sub under the Merger Agreement or a Agreement; (y) breach by the Guaranteed Party of this Limited Guarantee; and (z) fraud or willful misconduct by the Guaranteed Party or any of its Affiliates (which, for the purpose of this sentence, shall exclude the Founder, the Founder Holdco, the Guarantor, any Other Guarantor, Sponsors, Rollover Shareholders, Supporting Shareholders, or any Affiliate thereof). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and it shall cause its Subsidiaries and its their respective officers, directors, managers or Affiliates (whichcollectively, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee“Guaranteed Party Related Persons”) not to institute, directly or indirectly, in the name of or on behalf of the Guaranteed Party or any other person, any action, suit or proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited Parent dated the date hereof (the “Equity Commitment Letter”, and together with the other equity commitment letters between each Other Guarantor Guarantor, as applicable, and Goliath Group Holdings LimitedParent, collectively, the “Equity Commitment Letters”), the Support Agreement, the Rollover Agreement (this Limited Guarantee, the Other Guarantees, the Merger Agreement, the Equity Commitment Letters, the Support Agreement and the Rollover Agreement, collectively, the “Transaction Agreements”), any other agreement or instrument delivered pursuant to such Transaction Agreements, or any of the transactions contemplated hereby or thereby, or in respect of any written or oral representations made or alleged to have been made in connection herewith or therewith, whether at law, in equity, in contract, in tort or otherwise, against Parent, Merger Sub, the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against (i) Parent and Merger Sub under and to the extent expressly provided in the Merger Agreement, (ii) the Guarantor (but not any Non-Recourse Party) under (and to the extent permitted by) this Limited Guarantee by the Guaranteed Party (subject to the limitations described herein), (iii) each Other Guarantor under (and against to the extent permitted by) its Other Guarantors under the Other Guarantees Guarantee (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries (iv) the Guarantor, the Other Guarantors and its Affiliates not their respective successors and permitted assigns under the Equity Commitment Letters pursuant to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable and in accordance with its termsthe terms of the Equity Commitment Letters and the Merger Agreement (claims under clauses (i) through (iv) collectively, the “Retained Claims”). (dc) The Except as set forth in Sections 2 and 3 hereof, the Guarantor hereby unconditionally and irrevocably waives waives, and agrees not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee (subject to the limitations described herein) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee (subject to the limitations described herein) shall have been paid in full in immediately available fundsfunds by the Guarantor (or by any other person, including Parent or Merger Sub, on behalf of the Guarantor). If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all (subject to the limitations described herein) by the Guarantor (or by any other amounts payable under this Limited Guaranteeperson, including Parent or Merger Sub, on behalf of the Guarantor), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Percentage of the Obligations (subject to the limitations described herein) in accordance with the terms of the Merger Agreement and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for such Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising(subject to the limitations described herein). Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to clause (v) under Section 3(a), the Guaranteed Party hereby agrees that: , (i) to the extent Parent the Obligations are not payable pursuant to, and in accordance with, the Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeAgreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations to make payments under this Limited Guarantee for the same obligation for which Parent and Merger Sub were relieved under the Merger Agreement, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicablelimitations described herein) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses defense in respect of fraud or willful misconduct of the Guaranteed Party or the Guaranteed Party Related Persons hereunder or any breach by the Guaranteed Party of any term hereof.

Appears in 3 contracts

Samples: Limited Guarantee (58.com Inc.), Limited Guarantee (General Atlantic LLC), Limited Guarantee (Yao Jinbo)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor Investor agrees that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the GuarantorInvestor, extend the time of payment of any portion of the Merger Agreement Obligations, and may also make any agreement with Parent, Merger Sub MergerCo or any Other Guarantor or with any other person interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Company and Parent, Merger Sub MergerCo or any such other person without in any way impairing or affecting the GuarantorInvestor’s obligations under this Limited GuaranteeLetter Agreement. The Guarantor Investor agrees that the its obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor MergerCo or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Merger Agreement Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Merger Agreement Obligations (in each caseprovided that any such change, except in the event of any rescission, waiver, compromise, consolidation or other amendment or modification shall be subject to the circumstances prior written consent of MergerCo to the extent required under which the Obligations are payableMerger Agreement), ; (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any entity or other person interested in the Guarantor with respect transactions contemplated by the Merger Agreement, (provided that any such addition, substitution or release shall be subject to the Obligations as a result prior written consent of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect MergerCo to the Obligations extent required under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ); (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub MergerCo or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub MergerCo or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that which the Guarantor Investor may have at any time against Parent or Merger Sub MergerCo or the Guaranteed PartyCompany, whether in connection with the Merger Agreement Obligations or otherwise, ; (viig) any other act or omission that may change in the Applicable Law of any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) jurisdiction; or (viiih) the adequacy of any other means the Guaranteed Party Company may have of obtaining payment related to of any of the Merger Agreement Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor Investor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor Investor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Letter Agreement and of the Merger Agreement Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Merger Agreement Obligations incurred and all other notices of any kind (other than except for notices required to Parent or be provided to MergerCo and its counsel in accordance with Section 8.7 of the Merger Sub pursuant Agreement, which when duly given shall be deemed notice to the Merger Agreement or this Limited GuaranteeInvestor), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling marshaling of assets of Parent or Merger Sub MergerCo or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses generally. Notwithstanding anything to the contrary contained herein, the Company agrees that the Investor may assert, as a defense to any payment by the Investor under this Letter Agreement, any claim, set-off, deduction or defense that (A) MergerCo could assert against the Company under the terms of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or (B) the Investor could assert based upon a breach by the Guaranteed Party Company of this Limited GuaranteeLetter Agreement (including claims against the Company or any of its Subsidiaries for fraud or willful misconduct). The Guarantor Investor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Letter Agreement are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Letter Agreement (Theragenics Corp), Letter Agreement (Michas Alexis P)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees Guarantors agree that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the GuarantorGuarantors, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s Guarantors’ obligations under this Limited GuaranteeGuaranty. The Guarantor agrees Guarantors agree that the obligations of Guarantor the Guarantors hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), ; (iii) the addition, substitution, substitution any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor Guarantors with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that which the Guarantor Guarantors may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor Guarantors or otherwise operate as a discharge of the Guarantor Guarantors as a matter of law or equity (other than a discharge of the Guarantor Guarantors with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ); or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives Guarantors waive promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeGuaranty), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations (x) that are available to Parent or Merger Sub under the Merger Agreement or Agreement, (y) in respect of a breach by the Guaranteed Party of this Limited GuaranteeGuaranty or (z) in respect of fraud or willful misconduct of the Guaranteed Party or any of its Affiliates other than any member of the Buyer Group (other than in connection with the Merger Agreement), including, without limitation, any event, condition or circumstance that might be construed to constitute, an equitable or legal discharge of the Guarantors’ obligations hereunder. The Guarantor acknowledges Guarantors acknowledge that it they will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)transactions contemplated thereby, against the Guarantor Guarantors or any Non-Recourse Party (as defined in Section 99 herein), except for claims against the Guarantor Guarantors under this Limited Guarantee Guaranty (subject to the limitations described herein) ), and against the Other Guarantors under the Other Guarantees Guaranties (subject to the limitations described therein). The Guarantor Guarantors hereby covenants covenant and agrees agree that it they shall not institute, directly or indirectly, and shall cause its their respective Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor Guarantors hereby unconditionally and irrevocably waives waive and agrees agree not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s Guarantors’ obligations under or in respect of this Limited Guarantee Guaranty or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor Guarantors in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor Guarantors and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee Guaranty but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeFee or the expense reimbursement obligations of Parent to the Guaranteed Party under Section 8.06(c) of the Merger Agreement, the Guarantor Guarantors shall be similarly relieved of its Guaranteed Percentage of such their obligations under this Limited Guarantee Guaranty, and (ii) the Guarantor Guarantors shall have all defenses to the payment of its obligations under this Limited Guarantee Guaranty (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations 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 of the terms or provisions hereof.

Appears in 2 contracts

Samples: Limited Guaranty (Baring Asia Ii Holdings (22) LTD), Limited Guaranty (Morgan Stanley)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor Investor agrees that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the GuarantorInvestor, extend the time of payment of any portion of the Obligations, and may also make enter into any agreement with Parent, Merger Sub Parent or any Other Guarantor or with any other person Person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of the Merger Agreement or any other agreement between the Guaranteed Party Company and Parent, Merger Sub Parent or any such other person Person without in any way impairing or affecting the GuarantorInvestor’s obligations under this Limited Guarantee. The Guarantor Investor agrees that the its obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Parent or any other person Person interested in the Transactions, ; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each caseprovided that any such change, except in the event of any rescission, waiver, compromise, consolidation or other amendment or modification shall be subject to the circumstances prior written consent of Parent to the extent required under which the Obligations are payableMerger Agreement or such other agreement), ; (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge any entity or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise other Person interested in the Transactions (including provided that any Other Guarantorsuch addition, substitution or release shall be subject to the prior written consent of Parent to the extent required under the Merger Agreement or such other agreement), ; (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub Parent or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions Transactions; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Parent or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions Transactions; (including f) any Other Guarantorlack of validity or enforceability of the Merger Agreement or any agreement or instrument relating thereto (in each case against any person other than the Company), other than by reason of fraud or willful misconduct by the Company; (vig) the existence of any claim, set-off or other right that which the Guarantor Investor may have at any time against Parent or Merger Sub or the Guaranteed PartyCompany, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiih) the adequacy of any other means the Guaranteed Party Company may have of obtaining payment related to of any of the Obligations. (b) obligations. To the fullest extent permitted by Law, the Guarantor Investor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor Investor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations obligations incurred and all other notices of any kind (other than except for notices to be provided to Parent or Merger Sub pursuant to and its counsel in accordance with Section 9.02 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor)Transactions, and all suretyship and guarantor defenses generally (other than fraud or willful misconduct by the Company or any of the Company Affiliates (as defined below), defenses to the payment of the Obligations that are available to Parent or Merger and Sub and their respective Affiliates under the Merger Agreement (and are not waived above) or a breach by the Guaranteed Party Company of this Limited Guarantee, each of the foregoing defenses being retained by the Investor). The Guarantor Investor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Limited Guarantee (Sage Parent Company, Inc.), Limited Guarantee (Sport Supply Group, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the GuarantorGuarantors, extend the time of payment of any portion of the ObligationsObligation, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Buyers for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person Buyers without in any way impairing or affecting the Guarantor’s Guarantors’ obligations under this Limited GuaranteeAgreement. The Each Guarantor agrees that the obligations of Guarantor the Guarantors hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by, among other things: (i) the failure (or delay delay) on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, Buyers; (ii) any change in the time, place or manner of payment of any portion of the Obligations Obligation or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed executed, in each case to the extent a Guarantor is a party, in connection with any portion of the Obligations (in each case, except in transactions contemplated by the event of any amendment to Merger Agreement or the circumstances under which the Obligations are payable), Obligation; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub Buyers or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Buyers or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that which the Guarantor Guarantors may have at any time against Parent or Merger Sub Buyers or the Guaranteed PartyParty or any of its Affiliates, whether in connection with the Obligations Obligation or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related of the Obligation; (viii) the death, disability or incapacity of any Guarantor, (ix) the value, genuineness, validity, regularity, illegality or enforceability of the Commitment Letters against the Buyers, in each case in accordance with the terms thereof, and (x) any other act or omission which might in any manner or to any extent vary the Obligations. (b) risk of the Guarantors or otherwise operate as a release or discharge of the Guarantors. To the fullest extent permitted by Lawlaw, the Guarantor Guarantors hereby expressly waives waive any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives Guarantors waive promptness, diligence, notice of the acceptance of this Limited Guarantee Agreement and of the ObligationsObligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion the incurrence of the Obligations incurred Obligation and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent Buyers or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)Guarantors, and all suretyship defenses generally (other than defenses to the payment of the Obligations Obligation that are available to Parent or Merger Sub Buyers under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeAgreement or the Merger Agreement). The Guarantor acknowledges Guarantors acknowledge that it they will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Agreement are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants . In furtherance of the foregoing and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described contained herein) , each Guarantor acknowledges that the Guaranteed Party may, in its sole discretion, bring and prosecute a separate action or actions against such Guarantor for the Other Guarantors under full amount of the Other Guarantees (subject to the limitations described therein). The Obligations, regardless of whether any action is brought against Parent, Merger Sub or any other Guarantor hereby covenants and agrees that it shall not instituteor whether Parent, directly Merger Sub or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense other Guarantor is joined in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid action or unenforceable in accordance with its termsactions. (db) The Guarantor Guarantors hereby unconditionally and irrevocably waives and agrees agree not to exercise any rights that it they may now have or hereafter acquire against Parent or Merger Sub Buyers with respect to the Obligation that arise from the existence, payment, performance, performance or enforcement of the Guarantor’s Guarantors’ obligations under or in respect of this Limited Guarantee Agreement or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other GuarantorBuyers, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other GuarantorBuyers, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Obligation shall have been paid satisfied in full in immediately available fundsfull. If any amount shall be paid to the any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations Obligation and all other amounts payable under this Limited GuaranteeAgreement, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, Obligation or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee Obligation thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Agreement, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeBuyers’ representations, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which warranties, covenants or agreements contained in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses in respect of fraud or willful misconduct of the Guaranteed Party hereunder or any breach are waived by the Guaranteed Party of any term hereofParty, then such waiver shall extend to the Guarantors.

Appears in 2 contracts

Samples: Guaranty and Voting Agreement (American Greetings Corp), Guaranty and Voting Agreement (American Greetings Corp)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the such Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the such Guarantor’s obligations under this Limited GuaranteeGuaranty. The Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), ; (iii) the addition, substitution, substitution any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the such Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that the which such Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the such Guarantor or otherwise operate as a discharge of the such Guarantor as a matter of law or equity (other than a discharge of the such Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ); or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeGuaranty), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeGuaranty). The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or transactions contemplated thereby, the Equity Commitment Letter between the Guarantor Guarantors and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Keystone Lodging Holdings Limited, collectively, the “Equity Commitment Letters”), against the any Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for claims against the Guarantor Guarantors under this Limited Guarantee Guaranty (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees Guaranties (subject to the limitations described therein). The Each Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee Guaranty or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to the a Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee Guaranty but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeFee or the expense reimbursement obligations of Parent to Guaranteed Party under Section 8.06(c) of the Merger Agreement, the Guarantor Guarantors shall be similarly relieved of its Guaranteed Percentage of such their obligations under this Limited Guarantee Guaranty, and (ii) the Guarantor Guarantors shall have all defenses to the payment of its their obligations under this Limited Guarantee Guaranty (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations 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 of the terms or provisions hereof.

Appears in 2 contracts

Samples: Limited Guaranty (7 Days Group Holdings LTD), Limited Guaranty (7 Days Group Holdings LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), ; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) equity; or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeGuaranty), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it he will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or transactions contemplated thereby, the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)Parent, against the Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for claims against the Guarantor under this Limited Guarantee Guaranty (subject to the limitations described herein) ), for specific performance under the Equity Commitment Letter subject to the terms and conditions thereunder and against the Other Guarantors under the Other Guarantees Guaranties (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its his Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, proceeding that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it he may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee Guaranty or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee Guaranty but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved discharged in respect of its Guaranteed Percentage the Obligations as a result of such obligations under this Limited Guarantee and payment in full of the Obligations in accordance with their terms, (ii) the Guarantor shall have all defenses to the payment of its his obligations under this Limited Guarantee Guaranty (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations 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 of the terms or provisions hereof.

Appears in 2 contracts

Samples: Limited Guaranty (Baring Asia Ii Holdings (22) LTD), Limited Guaranty (Morgan Stanley)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the either Guarantor, extend the time of payment of any portion of the ObligationsGuaranteed Obligations (provided that the foregoing shall be subject to the consent of Parent and Merger Sub to the extent such extension involves an amendment of the Merger Agreement), and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent and/or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s Guarantors’ obligations under this Limited Guarantee. The Each Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure (or delay on the part delay) of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person interested Guarantor; (b) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other Guarantor; (c) the existence of any claim, set-off or other right which a Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Transactions, Guaranteed Obligations or otherwise; (iid) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations; (e) any change in the time, place or manner of payment of any portion of the Guaranteed Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Guaranteed Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiif) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any entity or other person interested in the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, ; or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (ivg) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) Sub. To the fullest extent permitted by Lawlaw, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub pursuant to be provided in accordance with the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its subsidiaries or affiliates, defenses to the payment of the Guaranteed Obligations under the Merger Agreement or otherwise that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives covenants and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent and/or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent and/or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the a Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited GuaranteeGuaranteed Obligations, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranteed Obligations, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Guaranteed Obligations or other amounts payable under this Limited Guarantee thereafter arising. Upon payment of the Guaranteed Obligations in full in cash owing to the Guaranteed Party, each Guarantor shall be subrogated to the rights of the Guaranteed Party against Parent and Merger Sub, and the Guaranteed Party agrees to take, at the Guarantors’ expense, such steps as a Guarantor may reasonably request to implement such subrogation. By acceptance of this Limited Guarantee, the Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its subsidiaries and affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby, against any Guarantor or Parent Affiliate (as defined below), except for claims against a Guarantor or a Successor Entity (as defined below) under this Limited Guarantee. The Guarantor hereby covenants and agrees that it shall not institute, and shall cause its subsidiaries and affiliates not to institute, any proceeding asserting that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved (other than by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally, or general equitable principles (whether considered in a proceeding in equity or at law)) of all or any portion of their obligations with respect to the Parent Termination FeeGuaranteed Obligations under the Merger Agreement, the each Guarantor shall be similarly relieved of its the Guaranteed Percentage of such obligations Obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 2 contracts

Samples: Limited Guarantee (Station Casinos Inc), Limited Guarantee (Station Casinos Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment or performance of any portion of the Obligations, and may also make enter into any agreement with Parent, Merger Sub or any Other Guarantor Parent or any other person Person controlled by Parent and interested in the Transactions transactions contemplated by the Merger Agreement (an “Interested Person”) for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof Merger Agreement or of any agreement between the Guaranteed Party and Parent, Merger Sub Parent or any such other person Interested Person without in any way impairing or affecting the Guarantor’s obligations Obligations under this Limited Guarantee. The Guarantor agrees that the obligations Obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Parent or any other person interested in the Transactions, Interested Person; (ii) any change in the time, place or manner of payment or performance of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with Agreement, except to the terms thereof extent Parent has a defense to the payment or any agreement evidencing, securing or otherwise executed in connection with any portion performance of the Obligations (in each caseunder such rescission, except in the event of any waiver, compromise, consolidation or other amendment to the circumstances under which the Obligations are payable), or modification; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Interested Person; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Parent or any other person now or hereafter liable with respect to any portion of Interested Person (other than the Obligations or otherwise Company) interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (viv) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed PartyParty or any of their respective Affiliates, whether relating to, arising out of or in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge those described in the last sentence of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) Section 2); or (viiivi) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to or performance of any of the Obligations. (b) . To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub be provided pursuant to this Limited Guarantee or to Parent and its counsel in accordance with the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Applicable Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses fraud or willful misconduct by the Guaranteed Party or any of its Affiliates). Notwithstanding anything to the payment contrary contained in this Limited Guarantee, the Guaranteed Party hereby agrees that to the extent that Parent is relieved of the any of its Obligations that are available to Parent or Merger Sub under the Merger Agreement (other than due to, in connection with, or as a breach result of, the insolvency or bankruptcy of Parent), the Guarantor shall be similarly relieved of the Obligations under this Limited Guarantee. Notwithstanding anything to the contrary in this Limited Guarantee, any payment made by or on behalf of Parent to the Guaranteed Party with respect to an Obligation shall reduce the total Obligations of this Limited Guarantee). The the Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in under this Limited Guarantee are knowingly made in contemplation by the amount of such benefitspayment. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly institute or indirectlyassert, and shall cause its Subsidiaries Affiliates and its Affiliates (whichany controlled Person claiming by, for the avoidance through or on behalf of doubtany of them, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly institute or indirectly, assert any action or proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party Claim (as defined in Section 9), or any claim, cause of action or proceeding arising out of, connected to or in any manner relating to the Merger Agreement or the transactions contemplated thereby, of any kind whatsoever against the Guarantor or any Non-Parties (as defined in Section 9) except for claims (i) against the Guarantor under and pursuant to this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause and/or (ii) of against Parent under and pursuant to the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its termsMerger Agreement. (dc) The Except as explicitly set forth herein or in the Merger Agreement, the Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or any other Person interested in the transactions contemplated by the Merger Sub Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim Claim or remedy of the Guaranteed Party against Parent, Merger Sub Parent or any Other Guarantorsuch other Person, whether or not such claimClaim, remedy or right arises in equity or under contractContract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub Parent or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claimClaim, remedy or right, unless and until all of the any payment Obligations and all other amounts payable under this Limited Guarantee shall have been irrevocably and unconditionally paid in full in immediately available fundscash, provided, that the Guarantor shall have the right to cause any other Person to satisfy its payment Obligations to the Guaranteed Party hereunder; provided, further, that the Guarantor shall remain obligated with respect to such payment Obligations until so satisfied. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of any payment Obligations, an amount equal to the lesser of (i) the amount paid to the Guarantor in violation of the Obligations immediately preceding sentence, and (ii) all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered by the Guarantor to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guaranteeany payment Obligations, whether matured or unmatured, or to be held as collateral for the any payment Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofexisting.

Appears in 2 contracts

Samples: Limited Guarantee, Limited Guarantee (Graftech International LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that that, subject to the terms hereof, the Guaranteed Party may, in its sole discretion, discretion at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of or waive the ObligationsObligations in accordance with Section 9.11 of the Merger Agreement, and may also make enter into any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof of the Merger Agreement or of any agreement between the Guaranteed Party Party, on the one hand, and ParentMerger Sub, on the other hand, in each case in accordance with the terms of the Merger Sub or such other person Agreement, without in any way impairing or affecting the Guarantor’s obligations as provided in this Limited Guarantee; provided, that the consent of the Guarantor shall be required to the extent it has the effect of expanding the circumstances under which the obligations will be payable. 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 except to the extent the Guarantor under this Limited GuaranteeGuarantee is released or the provisions of the Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. The Guarantor agrees that that, except as set forth in clause (i) in the last sentence of Section 3(c) and except for termination in accordance with Section 8 of this Limited Guarantee, the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any escrow arrangement or other security therefor, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made (in each case, to the extent effected in accordance with the terms thereof of the Merger Agreement) or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (Obligations, in each case, except in the event of any amendment to the circumstances under which extent any of the Obligations are payable), foregoing does not have the effect of increasing the Cap; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Percentage of the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent Merger Sub by the Company with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement or any of their respective assets or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Obligations; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor Guarantor’s obligations as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the applicable Obligations in accordance with their its terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or ); (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. ; or (bix) the value of the Other Guarantees or any other agreement or instrument referred to herein or therein. To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Merger Sub pursuant to in accordance with the Merger Agreement or Agreement, this Limited GuaranteeGuarantee or any other agreement or instrument delivered herewith or therewith), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar applicable Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally generally. Notwithstanding anything herein to the contrary, each of the following defenses shall be retained by the Guarantor: (other than i) defenses to the payment of the Obligations that are available to Parent or Merger Sub or any other person under the Merger Agreement or a Agreement; (ii) breach by the Guaranteed Party of this Limited Guarantee); and (iii) fraud or willful misconduct by the Guaranteed Party or any of the Guaranteed Party Related Persons. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and it shall cause its Subsidiaries and its other controlled Affiliates and their respective officers and directors (whichcollectively but excluding any member of Merger Sub Group, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee“Guaranteed Party Related Persons”) not to institute, directly or indirectly, in the name of or on behalf of the Guaranteed Party or any other person, any action, suit or proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Transactions Agreement or the Amended and Restated Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited Merger Sub dated the date hereof (the “Equity Commitment Letter”, and together with the other amended and restated equity commitment letters between each Other Guarantor and Goliath Group Holdings 51 Elevate Limited, as applicable, and Merger Sub, collectively, the “Equity Commitment Letters”) and the Support Agreements (this Limited Guarantee, the Other Guarantees, the Merger Agreement, the Equity Commitment Letters and the Support Agreements, collectively, the “Transaction Agreements”), any other agreement or instrument delivered pursuant to such Transaction Agreements, or any of the transactions contemplated hereby or thereby, or in respect of any written or oral representations made or alleged to have been made in connection herewith or therewith, whether at law, in equity, in contract, in tort or otherwise, against Merger Sub, the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against (i) Merger Sub and its successors and assigns under and to the extent expressly provided in the Merger Agreement, (ii) the Guarantor (but not any Non-Recourse Party) and its successors and assigns under (and to the extent permitted by) this Limited Guarantee by the Guaranteed Party (subject to the Cap and the other limitations described herein), (iii) each Other Guarantor and its successors and assigns under (and to the extent permitted by) its Other Guarantee (subject to the Cap as defined in such Other Guarantee and the other limitations described therein), (iv) the Guarantor, the Other Guarantors and their respective successors and permitted assigns under the Equity Commitment Letters pursuant to and in accordance with the terms of the Equity Commitment Letters and the Merger Agreement and (v) the Continuing Shareholders under the Support Agreements pursuant to and in accordance with the terms of the Support Agreements (claims under clauses (i) through (v) collectively, the “Retained Claims”). Notwithstanding anything in this Agreement to the contrary, but, for the avoidance of doubt, without prejudice to any right to specific performance the Guaranteed Party may have under any Transaction Agreement, in no event shall the Guaranteed Party be entitled to claim, seek or collect money damages from the Guarantor under this Limited Guarantee or any other Transaction Agreement in connection with a Retained Claim involving an aggregate amount payable (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) inclusive of the last sentence Guarantor’s payment of clause (dthe Guaranteed Percentage of the Obligations) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its termswould exceed the Cap. (dc) The Guarantor hereby unconditionally and irrevocably waives waives, and agrees not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee (subject to the Cap and the other limitations described herein) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee (subject to the Cap) shall have been paid in full in immediately available fundsfunds by the Guarantor (or by any other person, including Merger Sub, on behalf of the Guarantor) to the Guaranteed Party. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all (subject to the Cap) by the Guarantor (or by any other amounts payable under this Limited Guaranteeperson, including Merger Sub, on behalf of the Guarantor) to the Guaranteed Party, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Percentage of the Obligations (subject to the Cap) in accordance with the terms of the Merger Agreement and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for such Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising(subject to the Cap). Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to clause (v) under Section 3(a), the Guaranteed Party hereby agrees that: , (i) to the extent Parent the Obligations are not payable pursuant to, and in accordance with, the Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeAgreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations to make payments under this Limited Guarantee for the same obligation for which Merger Sub were relieved under the Merger Agreement, and (ii) the Guarantor shall have the right to assert and shall have the benefit of all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to and the extent applicableother limitations described herein) that would be available to Parent and/or Merger Sub (whether or not any such defense has been asserted by Merger Sub) under the Merger Agreement with respect to the Obligations as well as any defenses defense in respect of fraud or willful misconduct of the Guaranteed Party or the Guaranteed Party Related Persons hereunder or any breach by the Guaranteed Party of any term hereof.

Appears in 2 contracts

Samples: Limited Guarantee (51job, Inc.), Limited Guarantee (51job, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees Guarantors agree that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the GuarantorGuarantors, extend the time of payment of any portion of the Obligations, and also may also make any agreement with Parent, Merger Sub one or both of the Buyer Parties or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Company, on the one hand, and Parentone or both of the Buyer Parties or any Other Guarantor, Merger Sub or such on the other person hand, without in any way impairing or affecting the Guarantor’s Guarantors’ obligations under this Limited Guarantee. The Guarantor agrees Guarantors agree that the obligations of Guarantor the Guarantors hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, one or both of the Buyer Parties or any Other Guarantor or any other person interested in the Transactions, Guarantor; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof Agreement, any Other Guarantee, or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each caseprovided that any such change, except in rescission, waiver, compromise, consolidation or other amendment or modification shall be subject to the event prior written consent of the Buyer Parties to the extent expressly required by the Merger Agreement or to the prior written consent of any amendment of the applicable Other Guarantors, to the circumstances under which extent expressly required by any of the Obligations are payableOther Guarantees), ; (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any Person interested in the Guarantor with respect transactions contemplated by the Merger Agreement (provided, that any such addition, substitution or release shall be subject to the Obligations as a result of payment in full prior written consent of the Obligations in accordance with their terms, a discharge or release of Parent with respect Buyer Parties to the Obligations extent expressly required under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ); (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub one or both of the Buyer Parties or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligations; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parentone or both of the Buyer Parties, Merger Sub or any other person now or hereafter Person liable with respect to any portion of the Obligations Obligations; (f) subject to the last sentence of Section 2(a) hereof, any lack of validity or otherwise interested in enforceability of the Transactions Obligations, the Merger Agreement or any agreement or instrument relating thereto; (including any Other Guarantor), (vig) the existence of any claim, set-off or other right that rights which the Guarantor Guarantors may have at any time against Parent one or Merger Sub both of the Buyer Parties, any Other Guarantor or the Guaranteed PartyCompany, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiih) the adequacy of any other means the Guaranteed Party Company may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Law, the Guarantor Guarantors hereby expressly waives waive any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor waives Guarantors waive promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub pursuant be provided to the Buyer Parties and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP in accordance with Section 9.2 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent one or Merger Sub both of the Buyer Parties, or any other person interested in Person liable with respect to any of the Transactions (including any Other Guarantor)Obligations, and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party Company of this Limited Guarantee). The Guarantor acknowledges Guarantors hereby unconditionally and irrevocably agree that it shall not institute, and shall cause its Affiliates not to institute, any proceeding asserting that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general application relating to or affecting creditors’ rights, and general equitable principles (whether considered in a proceeding in equity or at law). The Guarantors acknowledge that they will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefitsbenefits and after the advice of counsel. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Limited Guarantee (Adesa Inc), Limited Guarantee (Adesa Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the such Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement, including the Merger (the “Transactions”) for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person Person without in any way impairing or affecting the such Guarantor’s obligations under this Limited Guarantee. The Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person Person interested in the Transactions, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the such Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the such Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the such Guarantor or otherwise operate as a discharge of the such Guarantor as a matter of law or equity (other than a discharge of the such Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or ), (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the ObligationsObligations or (ix) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement, in each case in accordance with its terms (other than by reason of fraud by the Company). (b) To the fullest extent permitted by Law, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor Guarantors or any Non-Recourse Party (as defined in Section 99 hereof), except for claims against the Guarantor Guarantors under this Limited Guarantee (subject to the limitations described herein) and ), against the Other Guarantors under the Other Guarantees (subject to the limitations described therein) and against the Guarantors, Parent and Merger Sub for the Retained Claims under this Limited Guarantee (subject to the limitations described herein). The Each Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub with respect to any of the Obligations that arise from the existence, payment, performance, performance or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or of remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, claim remedy or right, unless and until all of the Obligations and all other amounts payable the guaranteed obligations of the Other Guarantors under this Limited Guarantee the Other Guarantees shall have been paid in full in immediately available fundsfull. If any amount shall be paid to the a Guarantor in violation of the immediately preceding sentence at any time prior to the payment satisfaction in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeObligations, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from the other property and funds of the such Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and against all other amounts payable by the Guarantors under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to Section 3(a)) hereof, the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor Guarantors shall be similarly relieved of its Guaranteed Percentage of such their obligations under this Limited Guarantee and (ii) the Guarantor Guarantors shall have all defenses to the payment of its their obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Limited Guarantee (Sequoia Capital China I Lp), Limited Guarantee (Chiu Na Lai)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The 3.1. Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party Seller to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, the Company (or any Other Guarantor of its permitted assignees) or any other person interested in the Transactions, person; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment to or modification of any of the terms or provisions of the Merger Agreement Note made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result Company (or any of payment in full of the Obligations in accordance with their terms, a discharge its permitted assignees) or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), other person; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub the Company (or its permitted assignees) or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), person; (v) any insolvency, bankruptcy, reorganization Insolvency Event or other similar proceeding affecting Parent, Merger Sub the Company (or its permitted assignees) or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), person; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent the Company, Seller or Merger Sub or the Guaranteed Partyany of their respective affiliates, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party Seller may have of obtaining performance or payment related to of any of the Obligations. ; or (bviii) the value, genuineness, validity, regularity, illegality or enforceability of the Note. To the fullest extent permitted by Law, the Guarantor hereby unconditionally and irrevocably expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartySeller. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub the Company or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Note, and all suretyship defenses generally generally. Notwithstanding any of the foregoing, (other than defenses A) Guarantor may assert any right, remedy, set-off and defense to the payment of the Obligations that are available to Parent or Merger Sub the Company under the Merger Agreement Note (other than any such rights, remedies, set-offs and defenses arising out of, or due to, or as a breach by result of, any Insolvency Event with respect to the Guaranteed Party Company (including the rejection of the Note in an insolvency or bankruptcy of the Company)), and (B) Seller hereby agrees that to the extent the Company is relieved of its obligations and liabilities under the Note (other than due to, in connection with, or as a result of, any Insolvency Event with respect to the Company (including the rejection of the Note in an insolvency or bankruptcy of the Company)), Guarantor shall be similarly relieved of the applicable Obligations under this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Stock Purchase Agreement, the Note and the Other Ancillary Agreements and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein)3.2. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries affiliates and its Affiliates and its affiliates’ Representatives not to institute, directly or indirectly, any proceeding Proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The . Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub the Company that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithwith this Guarantee, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Seller against the Guaranteed Party against Parent, Merger Sub or any Other GuarantorCompany, whether or not such claim, remedy or right arises under applicable Law, whether at law or in equity equity, or under contract, statute or common LawContract, including the right to take or receive from Parent, Merger Sub or any Other Guarantorthe Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such an amount equal to the lesser of (i) the amount paid to Guarantor in violation of the immediately preceding sentence and (ii) all amounts payable under this Guarantee shall be received and held in trust for the benefit of the Guaranteed PartySeller, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party Seller in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Note, whether matured or unmatured, or to be held as collateral for any of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Guarantee (Dova Pharmaceuticals, Inc.), Guarantee (Dova Pharmaceuticals, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent and/or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the its obligations of Guarantor hereunder shall not be released or dischargeddischarged (except in the case where this Limited Guarantee is terminated in accordance with Section 8), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the TransactionsGuarantor, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent and/or Merger Sub with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent and/or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, or (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to of the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or and/or Merger Sub pursuant to the Merger Agreement or as expressly required pursuant to this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or and/or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Transactions Transactions, or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Teamsport Topco Limited (the “Equity Commitment Letter” and and, together with the each other equity commitment letters letter and amended and restated equity commitment letter, as applicable, between each Other Guarantor and Goliath Group Holdings Teamsport Topco Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described set forth herein) and against the each Other Guarantors Guarantor under the its Other Guarantees Guarantee (subject to the limitations described set forth therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee (subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee (but subject to Section 3(a)), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 2 contracts

Samples: Limited Guarantee (eHi Car Services LTD), Limited Guarantee (Ocean Imagination L.P.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and Sellers may from time to time and at any time, without notice to or further consent of the Guarantor, extend the time of payment payment, performance or discharge of any portion Obligations of the ObligationsBuyer, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Buyer for the extension, renewal, payment, compromise, discharge extension, discharge, renewal or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Sellers and Parent, Merger Sub or such other person the Buyer without in any way impairing or affecting the Guarantor’s obligations under this Limited Guaranteesuch Obligations. The Guarantor agrees that Obligations of the obligations of Guarantor hereunder Buyer shall not be released or discharged, in whole or in part, or otherwise affected by (i) the existence of any claim, set-off or other right which the Guarantor may have at any time against the Buyer, whether in connection with such Obligations or otherwise; (ii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Buyer; (iii) the failure or delay on the part of the Guaranteed Party Sellers to assert any claim or demand or to enforce any right or remedy against Parentthe Buyer; (iv) any change in the existence, Merger Sub, any Other Guarantor structure or ownership of the Buyer; (v) the adequacy of any other person interested in means the TransactionsSellers may have of obtaining payment, performance or discharge of any of the Buyer’s Obligations; or (iivi) any change in the time, place or manner of payment payment, performance or discharge of any portion of the Buyer’s Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger this Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) . To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartySellers. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Buyer’s Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Buyer’s Obligations incurred and all other notices of any kind (other than notices kind, any right to Parent or Merger Sub pursuant to require the Merger Agreement or this Limited Guarantee)marshaling of assets of the Buyer, all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), effect and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it will shall receive substantial direct and indirect benefits from the Transactions transactions contemplated by this Agreement and that the waivers set forth in this Limited Guarantee ARTICLE X are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Pendrell Corp), Stock Purchase Agreement (Pendrell Corp)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parentthe Buyer, Merger Sub, any Other such Guarantor or any other person Person now or hereafter liable with respect to any of the Obligations or otherwise interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment to or modification of any of the terms or provisions of the Merger Agreement or the Equity Commitment Letter, in each case, made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each caseObligations, except in so long as such change does not have the event effect of any amendment to the circumstances under which the Obligations are payable)increasing such Guarantor’s Per Claim Cap or Individual Cap, as applicable; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (iv) any change in the corporate existence, structure or ownership of Parentthe Buyer, Merger Sub such Guarantor or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parentthe Buyer, Merger Sub such Guarantor or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including transactions contemplated by the Merger Agreement or any Other Guarantor), of their respective assets; (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to any of the Obligations; (vii) subject to the last sentence of Section 3(c) of this Limited Guaranty, the existence of any claim, set-off or other right that such Guarantor may have at any time against the Guaranteed Party, whether in connection with any guaranteed Obligation or otherwise; (viii) any change in applicable Law; or (ix) any other act or omission that may or might in any manner or to any extent vary the risk of such Guarantor or otherwise operate as a discharge of such Guarantor as a matter of law or equity (other than payment of the Obligations or as permitted by the last sentence of Section 3(c) of this Limited Guaranty). (b) To the fullest extent permitted by Law, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub be provided to the Buyer pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that may be available by virtue of any valuation, stay, moratorium Law moratorium, or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub the Buyer or any other person Person now or hereafter liable with respect to any of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than (i) in respect of fraud or willful misconduct by the Guaranteed Party or any of its Affiliates, (ii) defenses to the payment of the Obligations that are available to Parent or Merger Sub the Buyer under the Merger Agreement or (iii) in respect of a breach by the Guaranteed Party of this Limited GuaranteeGuaranty). The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that this Limited Guaranty, including specifically the waivers set forth in this Limited Guarantee Guaranty, are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries Affiliates and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) Representatives not to institute, directly or indirectly, institute any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions transactions contemplated hereby or thereby, or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the any Guarantor or any Non-Recourse Party (as defined in Section 99 hereof), except (i) for claims against the a Guarantor (and such Guarantor’s legal successors or permitted assigns) under this Limited Guarantee Guaranty (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject ii) to the limitations described thereinextent permitted by Section 4 of the Equity Commitment Letter (collectively, the “Retained Claims”). The Each Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee Guaranty is illegal, invalid or unenforceable unenforceable, in whole or in part, in accordance with its terms. (dc) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub the Buyer that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee Guaranty or any other agreement in connection therewithherewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantorthe Buyer, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorthe Buyer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Guaranty shall have been previously paid in full in immediately available funds. If any amount shall be paid to the any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable by such Guarantor under this Limited GuaranteeGuaranty, such amount (which shall be no more than an amount equal to such Guarantor’s Individual Cap) shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be paid or delivered by such Guarantor to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable by such Guarantor under this Limited GuaranteeGuaranty, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable by such Guarantor under this Limited Guarantee Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guaranty, the Guaranteed Party hereby agrees that: that (i) to the extent Parent and Merger Sub are that the Buyer is relieved of any of their its obligations with respect to under the Parent Termination FeeMerger Agreement, the each Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations corresponding obligation (including its corresponding Obligation) under this Limited Guarantee Guaranty, solely in respect of such relieved obligations, and (ii) the each Guarantor shall have all defenses to the may assert, as a defense to, or release or discharge of, any payment of its obligations or performance by such Guarantor under this Limited Guarantee (which in Guaranty, any event shall be subject to claim, set-off, deduction, defense or release that the Cap to the extent applicable) that would be available to Parent and/or Merger Sub Buyer could assert against TGE under the Merger Agreement terms of, or with respect to to, the 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 hereofMerger Agreement.

Appears in 2 contracts

Samples: Limited Guaranty (Blackstone Holdings III L.P.), Limited Guaranty (Enagas U.S.A. LLC)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with Parent, Purchaser or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification agree to modify the terms of the terms thereof Agreement or of any agreement between the Guaranteed Party and Parentany other Person, Merger Sub in whole or such other person in part, without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty or affecting the validity or enforceability of this Guaranty. The Guarantor agrees that that, subject to the terms and provisions hereof, the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Purchaser or Merger Sub, any Other Guarantor Sub or any other person interested in the Transactions, Person; (ii) any change in the time, place or manner of payment of any portion of the Guaranteed Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or of provisions of the Merger Agreement made in accordance with the terms thereof or any agreement other agreement, evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Guaranteed Obligation; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Agreement; (iv) any change in the corporate existence, structure or ownership of ParentPurchaser, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Person; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting ParentPurchaser, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Person; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent Purchaser or Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations. ; or (bviii) any discharge of the Guarantor as a matter of applicable Law (other than as a result of, and to the extent of, payment of the Guaranteed Obligations in accordance with the terms of the Agreement or otherwise in accordance with the terms hereof). To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices required to Parent be made to Purchaser or Merger Sub pursuant to the Merger Agreement or and notices pursuant to this Limited GuaranteeGuaranty), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, effect or any right to require the marshalling of assets of Parent or Purchaser, Merger Sub or any other person Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach transactions contemplated by the Guaranteed Party of this Limited Guarantee)Agreement. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (di) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent Purchaser or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuaranty, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Purchaser or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Purchaser or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and (ii) the Guarantor shall not exercise any such rights, in the case of each of (i) and (ii), unless and until all of the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable by the Guarantor under this Limited GuaranteeGuaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Guaranty. (c) Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guaranty or otherwise, the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are Purchaser is relieved of all or any portion of their obligations with respect the Guaranteed Obligations by satisfaction thereof on the terms and subject to the Parent Termination Feeconditions set forth in the Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such corresponding payment obligations under this Limited Guarantee Guaranty; and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) Guaranty that would be available to Parent Purchaser and/or Merger Sub under the Merger Agreement with respect to the Guaranteed Obligations (except for defenses arising from the bankruptcy or insolvency of Purchaser, Merger Sub, Guarantor or any of their Affiliates), 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 hereofthis Guaranty.

Appears in 2 contracts

Samples: Limited Guaranty (RealD Inc.), Limited Guaranty

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make enter into any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Subject to the termination of this Limited Guarantee as provided herein, the Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Parent or any other person interested in the Transactions, Guarantor; (iib) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Guaranteed Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge any entity or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person other Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ivd) any change in the corporate legal existence, structure or ownership of Parent, Merger Sub Parent or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub instituted by or against Parent or any other person Person now or hereafter liable with respect to the Guaranteed Obligations; (f) the adequacy or potential adequacy of any portion alternative means the Guaranteed Party may have of obtaining payment related to the Obligations or otherwise interested in the Transactions Guaranteed Obligations; (including any Other Guarantor), (vig) the existence of any claim, set-set off or other right that the Guarantor may have at against Parent, the Company or any time against Parent other Person primarily or Merger Sub or secondarily liable for the Guaranteed PartyObligations, whether in connection with the Obligations any Guaranteed Obligation or otherwise, ; or (viih) any other act or omission that may might in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) otherwise expressly provided herein). To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed PartyParty (except to the extent specifically provided in the Merger Agreement). The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, effect or any right to require the marshalling marshaling of assets of Parent or Merger Sub or any other person Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under transactions contemplated by the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)Agreement. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (db) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and the Guarantor shall not exercise any such rights in each case unless and until all of the Guaranteed Obligations and all other amounts (which shall be subject to the Cap) payable by the Guarantor under this Limited Guarantee shall have been indefeasibly paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee(which shall be subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to payment of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or until they are paid in full (subject to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Cap). (c) Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)or otherwise, the Guaranteed Party hereby agrees that: (i) , in addition to the extent Parent and Merger Sub are relieved any defenses of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved on the basis of its Guaranteed Percentage a breach of such obligations under this Limited Guarantee and (ii) Guarantee, the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub or any assignee of Parent and/or Merger Sub under the the Merger Agreement with respect to the Obligations Guaranteed Obligations, as well as any defenses in respect of any fraud or willful misconduct on the part of the Guaranteed Party hereunder or any of its Affiliates or representatives or breach by the Guaranteed Party of any term hereofthis Limited Guarantee.

Appears in 2 contracts

Samples: Limited Guarantee (Safari Merger Subsidiary, Inc.), Limited Guarantee (Seacor Holdings Inc /New/)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the ObligationsGuaranteed Obligation, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Buyers for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person Buyers without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, Buyers; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Guaranteed Obligation; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any Person primarily or secondarily liable for the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Guaranteed Obligation; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub Buyers or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions Guaranteed Obligation; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Buyers or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions Guaranteed Obligation; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub Buyers or the Guaranteed PartyParty or any of its Affiliates, whether in connection with the Obligations Guaranteed Obligation or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related of the Guaranteed Obligation; or (h) any other act or omission which might in any manner or to any extent vary the Obligations. (b) risk of the Guarantor or otherwise operate as a release or discharge of the Guarantor. To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the ObligationsGuaranteed Obligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion the incurrence of the Obligations incurred Guaranteed Obligation and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub Buyers or any other person interested in Person primarily or secondarily liable with respect to the Transactions (including any Other Guarantor)Guaranteed Obligation, and all suretyship defenses generally (other than defenses to the payment of the Obligations Guaranteed Obligation that are available to Parent or Merger Sub Buyers under the Merger Agreement or a breach by the Guaranteed Party of this the Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent Buyers or Merger Sub any other Person liable with respect to the Guaranteed Obligation that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub Buyers or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub Buyers or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Guaranteed Obligation shall have been paid satisfied in full in immediately available fundsfull. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations Guaranteed Obligation and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranteed Obligation, whether matured or unmaturedin accordance with the terms of the Merger Agreement, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee Guaranteed Obligation thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeBuyers’ representations, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which warranties, covenants or agreements contained in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses in respect of fraud or willful misconduct of the Guaranteed Party hereunder or any breach are waived by the Guaranteed Party of any term hereofParty, then such waiver shall extend to the Guarantor.

Appears in 2 contracts

Samples: Limited Guarantee (Cole Kenneth Productions Inc), Limited Guarantee (Cole Kenneth Productions Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees Guarantors agree that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the GuarantorGuarantors, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees Guarantors agree that the obligations of Guarantor the Guarantors hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Parent or Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge substitution or release (of any other Person interested in the case transactions contemplated by the Merger Agreement; (d) any change in the corporate existence, structure or ownership of Parent or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement; (e) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or Merger Sub or any other Person interested in the transactions contemplated in the Merger Agreement; (f) the existence of any claim, set-off or other rights which any Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise; (g) the adequacy of any other means the Guaranteed Party may have of obtaining payment of the Obligations; or (h) any discharge of the Guarantors as a discharge or release, matter of applicable law (other than a discharge or release of the Guarantor with respect to the Obligations Guarantors as a result of payment in full of the Obligations in accordance with their terms, a discharge or release the terms of Parent with respect to the Obligations under the Merger Agreement, Agreement or as a result of defenses to the payment of the Obligations that would be available to Parent or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor Guarantors hereby expressly waives waive any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives Guarantors waive promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to be provided to Parent or and Merger Sub pursuant to in accordance with Section 9.09 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach fraud by the Guaranteed Party or any of this Limited Guaranteeits affiliates). The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, performance or enforcement of the such Guarantor’s obligations under under, on with or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and such Guarantor shall not exercise any such rights unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the either Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under under, in respect of or in connection with this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under by such Guarantor under, in respect of or in connection with this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their payment obligations with respect to under the Parent Termination FeeMerger Agreement, the Guarantor Guarantors shall be similarly relieved of its Guaranteed Percentage of such obligations their corresponding Obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses but only to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the same extent applicable) that would be available to Parent and/or or Merger Sub under the Merger Agreement with respect to the 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 hereofare so relieved.

Appears in 2 contracts

Samples: Guarantee (Symyx Technologies Inc), Guarantee (Symyx Technologies Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) equity; or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeGuaranty), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or transactions contemplated thereby, the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)Parent, against the Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for claims against the Guarantor under this Limited Guarantee Guaranty (subject to the limitations described herein) ), for specific performance under the Equity Commitment Letter subject to the terms and conditions thereunder and against the Other Guarantors under the Other Guarantees Guaranties (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, proceeding that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee Guaranty or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Limited Guaranty (Baring Asia Ii Holdings (22) LTD), Limited Guaranty (Morgan Stanley)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Midco and/or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in partpart (but not any increase of the amount thereof), or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Midco or Merger Sub, any Other Guarantor or any other person interested in the Transactions, ; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment to or modification of any of the terms or provisions of the Merger Agreement or the Equity Commitment Letter made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (ivc) any change in the corporate existence, structure or ownership of Parent, Midco, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (vd) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Midco, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (vie) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Midco, Merger Sub Sub, or the Guaranteed PartyParty or any of their Affiliates, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiif) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to any of the Obligations. (b) ; provided, that, notwithstanding the foregoing, the Guarantor shall be released and discharged from all obligations hereunder to the extent that the Obligation is satisfied by Parent or any other person. To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than required notices to Parent or Merger Sub pursuant to in accordance with the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent Parent, Midco or Merger Sub Sub, or any other person Person now or hereafter liable with respect to any of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Affiliates or any other defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeAgreement). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)transactions contemplated thereby, against the Guarantor or any Non-Recourse Party (as defined in Section 98 herein), except for claims against its rights to recover (i) from Parent under and to the extent expressly provided in the Merger Agreement; (ii) from Guarantor (but not any Non-Recourse Party) under and to the extent expressly provided in this Limited Guarantee (and subject to the Cap and other limitations described herein; and (iii) from Sponsor and against the Other Guarantors its successors and assigns under the Other Guarantees (subject Equity Commitment Letter pursuant to the limitations described therein)terms and conditions thereof. The Guarantor hereby covenants and agrees that it shall not instituteassert, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectlyassert, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) . The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Parent, Midco, Merger Sub or any other Person that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Midco, Merger Sub or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Midco, Merger Sub or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been previously paid in full (subject to the Cap) in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeObligations, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid promptly or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmaturedObligations, or at the Guaranteed Party’s option, to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arisingany Obligations. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: that (i) to the extent Parent and Parent, Midco or Merger Sub are is relieved of all or any portion of their obligations the Obligation by the satisfaction thereof or pursuant to any agreement with respect to the Parent Termination FeeGuaranteed Party (any amount so relieved, the “Reduction Amount”), the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and the Cap shall be reduced by an amount equal to the Reduction Amount; and (ii) the Guarantor shall have all defenses to the payment of its obligations the Obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent Parent, Midco and/or Merger Sub under the Merger Agreement with respect to the Obligations 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 of the terms or provisions hereof.

Appears in 2 contracts

Samples: Limited Guarantee (Chen Chris Shuning), Limited Guarantee (Pactera Technology International Ltd.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Limited Guarantor agrees that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the Limited Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub Parent or any Other Guarantor or any other person interested in the Transactions MergerSub for the creation, extension, renewal, accrual, payment, compromise, modification, amendment, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Company and Parent, Merger Sub Parent or such other person MergerSub without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty or affecting the validity or enforceability of this Limited Guaranty. The Subject to the other terms and conditions set forth herein, Limited Guarantor agrees that the obligations of Limited Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by, and Limited Guarantor hereby expressly waives to the fullest extent permitted by Applicable Law any defense now or in the future arising by reason of: (i) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger SubMergerSub, any Other Guarantor or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place place, manner or manner terms of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or any change or extension of the time of payment or performance of, renewal or alteration of, any Obligation, any escrow arrangement or other security therefor, any liability incurred directly or indirectly in respect thereof, or other amendment or modification or waiver of or consent to any departure from any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge substitution or release (of any other Person interested in the transactions contemplated by the Merger Agreement; (iv) any change in the legal existence, structure or ownership of Parent, MergerSub or any other Person interested in the transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, MergerSub or any other Person interested in the transactions contemplated by the Merger Agreement; (vi) the existence of any claim, set off or other right which Limited Guarantor may have at any time against Parent or MergerSub, whether in connection with the Obligations or otherwise; (vii) the adequacy of any other means the Company may have of obtaining payment of the Obligations; (viii) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement, in each case in accordance with its terms (other than any defense which Parent or MergerSub may have to payment of any Obligation in accordance with the express terms and conditions of the Merger Agreement); or (ix) any discharge of Limited Guarantor as a discharge matter of Applicable Law or release, equity (other than a discharge or release of the Limited Guarantor with respect to the Obligations as a result of the payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, terms or as a result of defenses to the payment of the Obligations that would be available to Parent or MergerSub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor.), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Applicable Law, the Limited Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that Applicable Law, which would otherwise require any election of remedies by the Guaranteed PartyCompany, except as expressly set forth in the Merger Agreement. The Limited Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices any notice required to Parent or Merger Sub be provided pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub Parent, MergerSub or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses generally. Limited Guarantor further expressly waives the benefit of any and all statutes of limitation, to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach fullest extent permitted by the Guaranteed Party of this Applicable Law. Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party Company hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries Affiliates and all of its Affiliates and their former, current and future directors, officers, agents, employees, general and limited partners, managers, members, stockholders, controlling persons and assignees (whichcollectively, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee“Company Related Parties”) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, this Limited Guaranty, the Merger Agreement, the Transactions any Financing Commitment Letter or any transaction contemplated hereby or thereby against Limited Guarantor or any Parent Related Party of Limited Guarantor, except for claims (i) against Parent to cause Parent to seek specific performance of Limited Guarantor’s obligations under the Equity Commitment Letter between to fund its commitment in accordance with the terms thereof, to the extent expressly permitted pursuant to Sections 10.02(b) and 11.13 of the Merger Agreement), (ii) against Limited Guarantor under this Limited Guaranty (subject to the Cap and Goliath Group Holdings the other limitations contained herein) and (iii) for specific performance of Limited Guarantor’s obligations under the Equity Commitment Letter (solely in Limited Guarantor’s capacity as a party to the Equity Commitment Letter” and together ) to fund its commitment in accordance with the other equity commitment letters between each Other Guarantor terms and Goliath Group Holdings Limitedconditions of the Equity Commitment Letter (the claims described in clauses (i), (ii) and (iii) collectively, the “Equity Commitment LettersNon-Prohibited Claims”), against the Guarantor or any Non-Recourse Party . (as defined in Section 9), except for claims against the Guarantor under this d) Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, institute any proceeding asserting or assert as a defense in any proceeding, subject and shall cause its respective Affiliates not to clause (ii) of the last sentence of clause (d) hereofinstitute any proceeding asserting or assert as a defense in any proceeding, that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Limited Guaranty (Goldman Sachs Group Inc), Limited Guaranty (Ebix Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make enter into any agreement with the Parent, Merger Sub or with any other Person (including any Other Guarantor or any other person Guarantor) interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof of the Merger Agreement or of any agreement between the Guaranteed Party and Parent, Merger Sub or any such other person Person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement (iiincluding any Other Guarantor); (b) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge any entity or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise other Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ) or affecting any of their respective assets; (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Parent, Merger Sub pursuant to and their counsel in accordance with the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Parent, Merger Sub or any other Person under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall use its reasonable best efforts to cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions Equity Financing Commitments or the Equity Commitment Letter between Merger Agreement or the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)transactions contemplated thereby, against the Guarantor or any Non-Recourse Related Party (as defined in Section 9below), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and or against the an Other Guarantors Guarantor under the Other Guarantees its respective limited guarantee (subject to the limitations described set forth therein). The , and the Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its respective Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. , subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors’ rights generally, and general equitable principles (d) whether considered a proceeding in equity or at law). The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Parent, Merger Sub or any other Person (including any Other Guarantor) interested in the transactions contemplated by the Merger Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or such other Person (including any Other Guarantor), whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited GuaranteeObligations, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeObligations, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 2 contracts

Samples: Limited Guarantee (SMART Modular Technologies (WWH), Inc.), Limited Guarantee (SMART Modular Technologies (WWH), Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the any Guarantor, extend the time of payment of any portion of the Payment Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor the Parent or any other person Person (including any Guarantor) interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or any other Person (including any Guarantor) interested in the transactions contemplated by the Merger Sub or such other person Agreement without in any way impairing or affecting the any Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the any delay or failure or delay on the part of the Guaranteed Party to assert in asserting any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor the Parent or any other person Person (including any Guarantor) interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations Payment Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement (other than amendments to the Payment Obligations) made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Payment Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge any entity or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person other Person now or hereafter liable with respect to any portion of the Payment Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ivd) any change in the corporate legal existence, structure or ownership of Parent, Merger Sub the Parent or any other person Person (including any Guarantor) now or hereafter liable with respect to any portion of the Payment Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, reorganization assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment, or other similar proceeding affecting Parent, Merger Sub or any other person now inability to pay or hereafter liable with respect perform affecting the Parent or any other Person (including any Guarantor to any portion of the Obligations or otherwise fullest extent permitted by Law) interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that the which any Guarantor may have at any time against the Parent or Merger Sub or the Guaranteed Party, whether in connection with the Payment Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Payment Obligations. ; or (bh) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement or any agreement or instrument related thereto, in each case in accordance with its terms, provided that this sentence is subject to the last sentence of this paragraph. To the fullest extent permitted by Law, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartyParty (including any bénéfice de division and the bénéfice de discussion, to the extent applicable). The Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Payment Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Payment Obligations incurred and all other notices of any kind (other than notices required to be made to the Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, effect or any right to require the marshalling marshaling of assets of Parent or Merger Sub or any other person Person now or hereafter liable with respect to the Payment Obligations or otherwise interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under transactions contemplated by the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)Agreement. The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institutenot, directly or indirectly, institute, and shall cause its Subsidiaries controlled Affiliates and its Affiliates (whichany of their employees, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) equityholders and representatives not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between or the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)respective transactions contemplated thereby, against the any Guarantor or any of the Non-Recourse Party Parties (as defined in Section 9below), except for claims against (i) the General Partner, acting in its capacity as described above, under the Confidentiality Agreement, (ii) any Guarantor under this Limited Guarantee or (iii) any Guarantor for specific performance of such Guarantor’s obligations under the Equity Commitment Letter to fund its commitment in accordance with the terms thereof pursuant to, and subject to the limitations described herein) and against in, Section 9.02 of the Other Guarantors under the Other Guarantees (subject to the limitations described therein)Merger Agreement. The Each Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding to enforce this Limited Guarantee, and shall cause its Affiliates not to assert as a defense in any such proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The . Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise assert any rights that it may now have or hereafter acquire against the Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against the Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from the Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable by such Guarantor under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust on behalf of and for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable by such Guarantor under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)or otherwise, the Guaranteed Party hereby agrees that: that (i) to the extent the Parent and Merger Sub are is relieved of any of their obligations with respect its Payment Obligations under the Merger Agreement, including pursuant to Section 8.02 thereof (other than solely as a result of bankruptcy of the Parent Termination FeeParent), the each Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations corresponding Payment Obligations under this Limited Guarantee solely in respect of such relieved obligation and (ii) the each Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) Payment Obligations that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as (other than any defenses in respect based solely on the bankruptcy of fraud or willful misconduct of the Guaranteed Party hereunder or any breach by the Guaranteed Party of any term hereofParent).

Appears in 2 contracts

Samples: Limited Guarantee (Inovalon Holdings, Inc.), Limited Guarantee (Inovalon Holdings, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent and/or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the its obligations of Guarantor hereunder shall not be released or dischargeddischarged (except in the case where this Limited Guarantee is terminated in accordance with Section 8), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the TransactionsGuarantor, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent and/or Merger Sub with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent and/or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, or (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to of the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or and/or Merger Sub pursuant to the Merger Agreement or as expressly required pursuant to this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or and/or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Transactions or Transactions, the Amended and Restated Equity Commitment Letter between the Guarantor and Goliath Group Holdings Teamsport Topco Limited (the “Equity Commitment Letter” and and, together with the each other equity commitment letters letter and amended and restated equity commitment letter, as applicable, between each Other Guarantor and Goliath Group Holdings Teamsport Topco Limited, collectively, the “Equity Commitment Letters”), or the Contribution and Support Agreement, against the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described set forth herein) and against the each Other Guarantors Guarantor under the its Other Guarantees Guarantee (subject to the limitations described set forth therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee (subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee (but subject to Section 3(a)), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 2 contracts

Samples: Limited Guarantee (Taylor Andrew C), Limited Guarantee (eHi Car Services LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The I. Guarantor agrees that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with Parentthe Parent Parties, Merger Sub or any Other Guarantor or any other person interested in the Transactions without Guarantor’s consent, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any other agreement between the Guaranteed Party Company and Parent, Merger Sub or such other person any of the Parent Parties without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that that, subject to the obligations of Guarantor hereunder terms and provisions hereof, the Guaranteed Obligations shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, Parent Party; (iib) any change in the time, place or manner of payment of any portion of the Guaranteed Obligations or any rescission, waiver, compromise, consolidation or other amendment to or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Guaranteed Obligations, including the Tender Offer; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any other Person interested in the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ; (including any Other Guarantor), (ivd) any change in the corporate or organizational existence, structure or ownership of Parent, Merger Sub any Parent Party or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub any Parent Party or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions Guaranteed Obligations; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that the rights which Guarantor may have at any time against the Parent Parties, the Company or Merger Sub or the Guaranteed Partyany of their respective Affiliates, whether in connection with the Guaranteed Obligations or otherwise, ; (viig) the adequacy of any other means the Company may have of satisfying any of the Guaranteed Obligations; (h) any other act or omission that may which might in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a release or discharge of the Guarantor as a matter Guarantor, all of law which may be done without notice to Guarantor; or equity (i) any other than a discharge of the Guarantor with respect event or circumstance, whether similar or dissimilar to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) foregoing. To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations obligations incurred and all other notices of any kind (other than notices to any of the Parent or Merger Sub Parties pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling marshaling of assets of the Parent or Merger Sub Parties or any other person entity or other Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to any of the Parent or Merger Sub Parties under the Merger Agreement or a breach by the Guaranteed Party Company of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The . Subject to the provisions of Section 2 and this Section 3, Guarantor reserves the right to assert defenses which any of the Parent Parties may have to payment of any Guaranteed Party Obligations in accordance with the terms and conditions of the Merger Agreement. Notwithstanding anything to the contrary contained in this Guarantee or otherwise, the Company hereby agrees that to the extent the Parent Parties are relieved of all or any portion of any Guaranteed Obligation, Guarantor shall be similarly relieved of its corresponding obligations under this Guarantee. Each party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in that any proceeding, subject to clause (ii) of the last sentence terms and provisions of clause (d) hereof, that this Limited Guarantee is are illegal, invalid or unenforceable in accordance with its termsunenforceable. (d) The II. Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against any of the Parent or Merger Sub Parties that arise from the existence, payment, performance, or enforcement of the Guaranteed Obligations or Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithwith the Merger Agreement or this Guarantee, including without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party Company against Parent, Merger Sub or any Other GuarantorParent Party, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other GuarantorParent Party, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee shall have been previously paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranteed Obligations, such amount shall be received and held in trust for the benefit of the Guaranteed PartyCompany, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranteed Obligations, whether matured or unmatured, or to be held as collateral for the any Guaranteed Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Merger Agreement (MPG Office Trust, Inc.), Guarantee (MPG Office Trust, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or with any other Person (including any Other Guarantor or any other person Guarantor) interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or any such other person Person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement (iiincluding any Other Guarantor); (b) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Parent, Merger Sub pursuant to and Sxxxxxx Xxxxxxx & Bxxxxxxx LLP in accordance with Section 10.1 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Subsidiaries, defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)transactions contemplated thereby, against any Guarantor or any of its former, current or future directors, officers, agents, Affiliates (other than Parent or Merger Sub) or employees, or against any of the former, current or future general or limited partners, members, managers or stockholders of the Guarantor or any Non-Recourse Party Affiliate thereof (as defined in Section 9other than Parent or Merger Sub) or against any former, current or future directors, officers, agents, Affiliates, general or limited partners, members, managers or stockholders of any of the foregoing (other than Parent or Merger Sub), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under their written limited guarantees, and the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its respective Affiliates not to institute, directly or indirectly, any proceeding proceedings asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. , subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and general equitable principles (d) whether considered in a proceeding in equity or at law). The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Parent, Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor) that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their obligations with respect to under Section 7.10(a), Section 7.11, Section 9.2(d) and the Parent Termination Feesecond sentence of Section 9.2(f) of the Merger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 2 contracts

Samples: Limited Guarantee (Frist Thomas F Jr), Limited Guarantee (Frist Thomas F Jr)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that that, subject to the terms hereof, the Guaranteed Party may, in its sole discretion, discretion at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of or waive the ObligationsObligations in accordance with Section 9.11 of the Merger Agreement, and may also make enter into any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof of the Merger Agreement or of any agreement between the Guaranteed Party Party, on the one hand, and ParentMerger Sub, on the other hand, in each case in accordance with the terms of the Merger Sub or such other person Agreement, without in any way impairing or affecting the Guarantor’s obligations as provided in this Limited Guarantee; provided, that the consent of the Guarantor shall be required to the extent it has the effect of expanding the circumstances under which the obligations will be payable. 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 except to the extent the Guarantor under this Limited GuaranteeGuarantee is released or the provisions of the Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. The Guarantor agrees that that, except as set forth in clause (i) in the last sentence of Section 3(c) and except for termination in accordance with Section 8 of this Limited Guarantee, the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any escrow arrangement or other security therefor, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made (in each case, to the extent effected in accordance with the terms thereof of the Merger Agreement) or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (Obligations, in each case, except in the event of any amendment to the circumstances under which extent any of the Obligations are payable), foregoing does not have the effect of increasing the Cap; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Percentage of the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent Merger Sub by the Company with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement or any of their respective assets or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Obligations; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor Guarantor’s obligations as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the applicable Obligations in accordance with their its terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or ); (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. ; or (bix) the value of the Other Guarantees or any other agreement or instrument referred to herein or therein. To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Merger Sub pursuant to in accordance with the Merger Agreement or Agreement, this Limited GuaranteeGuarantee or any other agreement or instrument delivered herewith or therewith), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar applicable Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally generally. Notwithstanding anything herein to the contrary, each of the following defenses shall be retained by the Guarantor: (other than i) defenses to the payment of the Obligations that are available to Parent or Merger Sub or any other person under the Merger Agreement or a Agreement; (ii) breach by the Guaranteed Party of this Limited Guarantee); and (iii) fraud or willful misconduct by the Guaranteed Party or any of the Guaranteed Party Related Persons. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and it shall cause its Subsidiaries and its other controlled Affiliates and their respective officers and directors (whichcollectively but excluding any member of Merger Sub Group, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee“Guaranteed Party Related Persons”) not to institute, directly or indirectly, in the name of or on behalf of the Guaranteed Party or any other person, any action, suit or proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited Merger Sub dated the date hereof (the “Equity Commitment Letter”, and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings 51 Elevate Limited, as applicable, and Merger Sub, collectively, the “Equity Commitment Letters”) and the Support Agreements (this Limited Guarantee, the Other Guarantees, the Merger Agreement, the Equity Commitment Letters and the Support Agreements, collectively, the “Transaction Agreements”), any other agreement or instrument delivered pursuant to such Transaction Agreements, or any of the transactions contemplated hereby or thereby, or in respect of any written or oral representations made or alleged to have been made in connection herewith or therewith, whether at law, in equity, in contract, in tort or otherwise, against Merger Sub, the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against (i) Merger Sub and its successors and assigns under and to the extent expressly provided in the Merger Agreement, (ii) the Guarantor (but not any Non-Recourse Party) and its successors and assigns under (and to the extent permitted by) this Limited Guarantee by the Guaranteed Party (subject to the Cap and the other limitations described herein), (iii) each Other Guarantor and its successors and assigns under (and to the extent permitted by) its Other Guarantee (subject to the Cap as defined in such Other Guarantee and the other limitations described therein), (iv) the Guarantor, the Other Guarantors and their respective successors and permitted assigns under the Equity Commitment Letters pursuant to and in accordance with the terms of the Equity Commitment Letters and the Merger Agreement and (v) the Continuing Shareholders under the Support Agreements pursuant to and in accordance with the terms of the Support Agreements (claims under clauses (i) through (v) collectively, the “Retained Claims”). Notwithstanding anything in this Agreement to the contrary, but, for the avoidance of doubt, without prejudice to any right to specific performance the Guaranteed Party may have under any Transaction Agreement, in no event shall the Guaranteed Party be entitled to claim, seek or collect money damages from the Guarantor under this Limited Guarantee or any other Transaction Agreement in connection with a Retained Claim involving an aggregate amount payable (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) inclusive of the last sentence Guarantor’s payment of clause (dthe Guaranteed Percentage of the Obligations) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its termswould exceed the Cap. (dc) The Guarantor hereby unconditionally and irrevocably waives waives, and agrees not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee (subject to the Cap and the other limitations described herein) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee (subject to the Cap) shall have been paid in full in immediately available fundsfunds by the Guarantor (or by any other person, including Merger Sub, on behalf of the Guarantor) to the Guaranteed Party. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all (subject to the Cap) by the Guarantor (or by any other amounts payable under this Limited Guaranteeperson, including Merger Sub, on behalf of the Guarantor) to the Guaranteed Party, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Percentage of the Obligations (subject to the Cap) in accordance with the terms of the Merger Agreement and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for such Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising(subject to the Cap). Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to clause (v) under Section 3(a), the Guaranteed Party hereby agrees that: , (i) to the extent Parent the Obligations are not payable pursuant to, and in accordance with, the Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeAgreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations to make payments under this Limited Guarantee for the same obligation for which Merger Sub were relieved under the Merger Agreement, and (ii) the Guarantor shall have the right to assert and shall have the benefit of all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to and the extent applicableother limitations described herein) that would be available to Parent and/or Merger Sub (whether or not any such defense has been asserted by Merger Sub) under the Merger Agreement with respect to the Obligations as well as any defenses defense in respect of fraud or willful misconduct of the Guaranteed Party or the Guaranteed Party Related Persons hereunder or any breach by the Guaranteed Party of any term hereof.

Appears in 2 contracts

Samples: Limited Guarantee (51job, Inc.), Limited Guarantee (51job, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with Parent, Parent and/or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. . (b) The Guarantor agrees that the his obligations of Guarantor hereunder shall not be released or dischargeddischarged (except in the case where this Limited Guarantee is terminated in accordance with Section 8), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Parent or Merger Sub, any Other Guarantor or any other person interested in the Transactions, (ii) any change in the time, place or manner of payment of any portion of the Guaranteed Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Guaranteed Obligations (in each case, except in the event of any amendment to the circumstances under which the Guaranteed Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Guaranteed Obligations in accordance with their terms, a discharge or release of Parent and/or Merger Sub with respect to the Guaranteed Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent and/or Merger Sub under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (iv) any change in the corporate existence, structure or ownership of Parent, Parent or Merger Sub or any other person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Parent or Merger Sub or any other person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor)Transactions, (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related of the Guaranteed Obligations, (viii) the addition, substitution or release of any Person now or hereafter liable with respect to the ObligationsGuaranteed Obligations or otherwise interested in the Transactions, to or from this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter, the Support Agreement or any related agreement or document, (ix) any change in the applicable Law of any jurisdiction, (x) any present or future action of any Governmental Entity amending, varying, reducing or otherwise affecting or purporting to amend, vary, reduce or otherwise affect, any of the obligations of Parent or Merger Sub under the Merger Agreement or of the Guarantor under this Limited Guarantee, or (xi) any other act or omission that might in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a release or discharge of the Guarantor. (bc) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices to Parent or and/or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)Sub, and all suretyship defenses generally (other than defenses generally. Notwithstanding anything to the contrary contained in this Limited Guarantee or otherwise, the Guaranteed Party hereby agrees that the Guarantor may assert, as a defense to, or release or discharge of, any payment of or performance by the Obligations Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that are available to (i) Parent or Merger Sub could assert against the Guaranteed Party under the terms of the Merger Agreement or a (ii) the Guarantor could assert based on breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The To the fullest extent permitted by applicable Law, the Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Maximum Amount) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations and all other amounts payable under this Limited GuaranteeGuarantee (subject to the Maximum Amount), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee (but subject to Section 3(a) and Section 3(b)), the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their obligations with respect to under the Parent Termination FeeMerger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such his corresponding obligations under this Limited Guarantee and (ii) solely in respect of such relieved obligations, provided, that for the Guarantor avoidance of doubt, this shall have all defenses not apply to the payment extent that Parent and Merger Sub are relived for their obligations solely as a result of its obligations under any order entered in any insolvency, bankruptcy, reorganization, dissolution, receivership or other similar proceeding affecting Parent and Merger Sub. (e) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee (which are knowingly made in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses in respect contemplation of fraud or willful misconduct of the Guaranteed Party hereunder or any breach by the Guaranteed Party of any term hereofsuch benefits.

Appears in 2 contracts

Samples: Limited Guarantee (Han Jie), Limited Guarantee (China XD Plastics Co LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with ParentParent or Merger Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub Sub, or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the corporate existence, structure or ownership of Parent, Merger Sub, or any other person interested in the transactions contemplated by the Merger Agreement; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement; (iv) except as expressly provided herein, 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 the Obligations or otherwise; (v) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any rescissionrecession, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), ; (iiivi) the any addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ivvii) any change in the corporate existence, structure or ownership adequacy of Parent, Merger Sub or any other person now or hereafter liable with respect to means the Guaranteed Party may have of obtaining repayment of any portion of the Obligations or otherwise interested in the Transactions Obligations; (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (viiviii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge or release of the Guarantor as a matter of law or equity (other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) Agreement or in respect of a discharge or release of the Guarantor’s obligations pursuant to Section 8 hereof); or (viiiix) the adequacy value, validity, legality or enforceability of any other means the Guaranteed Party may have of obtaining payment related to the ObligationsMerger Agreement. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any portion of the Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or and Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling marshaling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than valid defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeAgreement). The Guarantor acknowledges that it he will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it he may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the . (d) The Guaranteed Party hereby agrees that: (i) that to the extent Parent and or Merger Sub are is relieved of all or any portion of their its payment obligations with respect to under the Parent Termination FeeMerger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such their corresponding obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 2 contracts

Samples: Limited Guarantee (Tarena International, Inc.), Limited Guarantee (Han Shaoyun)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with ParentParent or Merger Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty or affecting the validity or enforceability of this Limited Guaranty. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Parent or Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated in the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations thereof; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor Guarantors with respect to the Guaranteed Obligations as a result of payment in full of the Guaranteed Obligations in accordance with their terms, a discharge or release of Parent with respect to the Guaranteed Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement) of the Guarantors or any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions person; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Parent or Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Sub; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations. ; or (bh) any act or omission by Parent or Merger Sub which directly or indirectly results in or aids in the discharge or release of Parent or Merger Sub or any portion of the Guaranteed Obligations by operation of law or otherwise. To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, effect or any right to require the marshalling of assets of Parent or Merger Sub or any other person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations (x) that are available to Parent or Merger Sub under the Merger Agreement or and this Limited Guaranty, (y) in respect of a breach by the Guaranteed Party of this Limited GuaranteeGuaranty or (z) in respect of fraud or willful misconduct of the Guaranteed Party or any of its Affiliates in connection with the Merger Agreement or this Limited Guaranty, including, without limitation, any event, condition or circumstance that might be construed to constitute an equitable or legal discharge of the Guarantor’s obligations hereunder). The Guarantor acknowledges that it he will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby Guarantor covenants and agrees that it he shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its his Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) . The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it he may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuaranty (subject to the Cap), including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and the Guarantor shall not exercise any such rights unless and until all of the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee Guaranty (which shall be subject to the Cap) shall have been indefeasibly paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranty (which shall be subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arisingGuaranty. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guaranty or otherwise, the Guaranteed Party hereby agrees that: that (ia) to the extent that Parent and and/or Merger Sub are is relieved of any of their obligations with respect to the Parent Termination FeeGuaranteed Obligations under the Merger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such his corresponding payment obligations under this Limited Guarantee Guaranty, and (iib) the Guarantor shall have all defenses to the payment of its his obligations under this Limited Guarantee Guaranty (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations Guaranteed Obligations, as well as any defenses in respect of any fraud or willful misconduct of the Guaranteed Party hereunder or any breach by the Guaranteed Party of any term hereofits Affiliates.

Appears in 2 contracts

Samples: Limited Guaranty (Right Advance Management Ltd.), Limited Guaranty (Idg-Accel China Growth Fund Ii L P)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parentthe Company, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any other agreement between the Guaranteed Party and Parent, Merger Sub or such other person the Company without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee, but in any case subject to the last sentence of Section 4(a). The Guarantor agrees that the obligations of Guarantor its Obligations hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, Company; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger LLC Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vc) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Company; (including any Other Guarantor), (vid) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed PartyCompany, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiie) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub pursuant be provided to the Merger Agreement or this Limited GuaranteeCompany and Shearman & Sterling LLP in accordance with Section 12.1 of the LLC Agreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)Company, and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its subsidiaries, defenses to the payment of the Obligations that are available to Parent or Merger Sub the Company under the Merger LLC Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the LLC Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Contribution Agreement, Contribution Agreement (Blush Acquisition Corp)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees Guarantors agree that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the GuarantorGuarantors, extend the time of payment of any portion of the ObligationsObligation, and may also make any agreement with Parent, Merger Sub Buyers or any Other Guarantor Person liable with respect to the Obligation or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub Buyers or any such other person Person without in any way impairing or affecting the Guarantor’s Guarantors’ obligations under this Limited Guarantee. The Guarantor agrees Guarantors agree that the obligations of Guarantor the Guarantors hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by, among other things, (ia) the failure (or delay delay) on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Buyers or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations Obligation or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement, any Ancillary Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligation; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any Person primarily or secondarily liable for the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligation; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub Buyers or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligation; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Buyers or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligation; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that which the Guarantor Guarantors may have at any time against Parent or Merger Sub Buyers or the Guaranteed PartyParty or any of its Affiliates, whether in connection with the Obligations Obligation or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related of the Obligation; (h) the death, disability or incapacity of any Guarantor or (i) any other act or omission which might in any manner or to any extent vary the Obligations. (b) risk of the Guarantors or otherwise operate as a release or discharge of the Guarantors. To the fullest extent permitted by Lawlaw, the Guarantor Guarantors hereby expressly waives waive any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives Guarantors waive promptness, diligence, notice of the acceptance of this Limited Guarantee and of the ObligationsObligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion the incurrence of the Obligations incurred Obligation and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub Buyers or any other person interested in Person primarily or secondarily liable with respect to the Transactions (including any Other Guarantor)Obligation, and all suretyship defenses generally (other than defenses to the payment of the Obligations Obligation that are available to Parent or Merger Sub Buyers under the Merger Agreement or a breach by the Guaranteed Party of this Limited the Guarantee). The Guarantor acknowledges Guarantors acknowledge that it they will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor Guarantors hereby unconditionally and irrevocably waives and agrees agree not to exercise any rights that it they may now have or hereafter acquire against Parent Buyers or Merger Sub any other Person liable with respect to the Obligation that arise from the existence, payment, performance, or enforcement of the Guarantor’s Guarantors’ obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub Buyers or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub Buyers or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Obligation shall have been paid satisfied in full in immediately available fundsfull. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations Obligation and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor Guarantors and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeObligation, whether matured or unmaturedin accordance with the terms of the Merger Agreement, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee Obligation thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeBuyers’ representations, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which warranties, covenants or agreements contained in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses in respect of fraud or willful misconduct of the Guaranteed Party hereunder or any breach are waived by the Guaranteed Party of any term hereofParty, then such waiver shall extend to the Guarantors.

Appears in 2 contracts

Samples: Guarantee (Cablevision Systems Corp /Ny), Guarantee (Cablevision Systems Corp /Ny)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), ; (iii) the addition, substitution, substitution any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ); or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeGuaranty), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeGuaranty). The Guarantor acknowledges that it he will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or transactions contemplated thereby, the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Keystone Lodging Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for claims against the Guarantor under this Limited Guarantee Guaranty (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees Guaranties (subject to the limitations limitiations described therein). The Guarantor hereby covenants and agrees that it he shall not institute, directly or indirectly, and shall cause its his Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it he may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee Guaranty or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee Guaranty but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeFee or the expense reimbursement obligations of Parent to Guaranteed Party under Section 8.06(c) of the Merger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such his obligations under this Limited Guarantee Guaranty, and (ii) the Guarantor shall have all defenses to the payment of its his obligations under this Limited Guarantee Guaranty (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations 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 of the terms or provisions hereof.

Appears in 2 contracts

Samples: Limited Guaranty (7 Days Group Holdings LTD), Limited Guaranty (7 Days Group Holdings LTD)

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CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Purchaser for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification or amendment of the terms thereof or of any agreement (including, without limitation, the Merger Agreement) between the Guaranteed Party and Parent, Merger Sub or such other person the Purchaser without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by, among other things: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor the Purchaser or any other person interested in Person, including the Transactions, Guarantor; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other Transaction Document or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (ivc) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Person; (including any Other Guarantor), (vd) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub the Purchaser or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Person; (including any Other Guarantor), (vie) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub the Purchaser or the Guaranteed PartyParty or any Affiliate thereof, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiif) the adequacy of any other means the Guaranteed Party may have of obtaining payment related or performance of any of the Obligations; or (g) any other event or condition which, but for the provisions hereof, would constitute a legal or equitable discharge of the obligations of the Guarantor hereunder (other than defenses to the Obligations. (b) payment or performance of the Obligations that are available to the Purchaser under the Merger Agreement or breach by the Guaranteed Party of this Guarantee). To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub pursuant be provided to the Purchaser in accordance with Section 9.7 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub the Purchaser or any other person interested in the Transactions (including any Other Guarantor)Person, and all suretyship defenses generally (other than defenses to the payment or performance of the Obligations that are available to Parent or Merger Sub the Purchaser under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it he will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of and exchange for such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it he shall not institute, directly or indirectly, and shall cause its Subsidiaries and its his respective Affiliates not to institute, directly or indirectly, any proceeding proceedings asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee or any term or condition set forth herein is illegal, invalid or unenforceable in accordance with its terms. (d) . The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it he may now have or hereafter acquire against Parent or Merger Sub the Purchaser that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantorthe Purchaser, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub the Purchaser or any Other Guarantorother Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement and this Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 2 contracts

Samples: Guarantee (Hampshire Group LTD), Guarantee (Hampshire Group LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) equity; or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeGuaranty), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it she will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or transactions contemplated thereby, the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)Parent, against the Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for claims against the Guarantor under this Limited Guarantee Guaranty (subject to the limitations described herein) ), for specific performance under the Equity Commitment Letter subject to the terms and conditions thereunder and against the Other Guarantors under the Other Guarantees Guaranties (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its her Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, proceeding that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it she may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee Guaranty or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeGuaranty, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee Guaranty but subject to subsection (v) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved discharged in respect of its Guaranteed Percentage the Obligations as a result of such obligations under this Limited Guarantee and payment in full of the Obligations in accordance with their terms, (ii) the Guarantor shall have all defenses to the payment of its her obligations under this Limited Guarantee Guaranty (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations 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 of the terms or provisions hereof.

Appears in 2 contracts

Samples: Limited Guaranty (Baring Asia Ii Holdings (22) LTD), Limited Guaranty (Morgan Stanley)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of from the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with ParentParent or Merger Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub Sub, or such other person without in any way impairing or affecting the Guarantor’s obligations (including the Obligations) under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the corporate existence, structure or ownership of Parent, Merger Sub, or any other person interested in the transactions contemplated by the Merger Agreement; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement; (iv) except as expressly provided herein, 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 the Obligations or otherwise; (v) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any rescissionrecession, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment amendment, executed in writing by the Guaranteed Party, to the circumstances under which the Obligations are payable), ; (iiivi) the any addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Parent Parties with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Parent Parties under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ivvii) any change in the corporate existence, structure or ownership adequacy of Parent, Merger Sub or any other person now or hereafter liable with respect to means the Guaranteed Party may have of obtaining repayment of any portion of the Obligations or otherwise interested in the Transactions Obligations; (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (viiviii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge or release of the Guarantor as a matter of law or equity (other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Parent Parties with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Parent Parties under the Merger Agreement) ); or (viiiix) the adequacy value, genuineness, validity, illegality or enforceability of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) Merger Agreement. To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. . (b) The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any portion of the Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub Parties pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling marshaling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Obligations (x) that are available to Parent or Merger Sub under the Merger Agreement Agreement, or (y) in respect of a breach by the Guaranteed Party of this Limited GuaranteeSection 8 hereof), including any event, condition or circumstance that might be construed to constitute an equitable or legal discharge of Guarantor’s obligations hereunder. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates respective affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) . The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the . (d) The Guaranteed Party hereby agrees that: (i) , other than any discharge or release arising from the bankruptcy or insolvency of the Parent Parties and other defenses expressly waived hereby, to the extent Parent and or Merger Sub are is relieved of all or any portion of their its payment obligations with respect to under the Parent Termination FeeMerger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such corresponding obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 2 contracts

Samples: Limited Guarantee (Fuling Global Inc.), Limited Guarantee (SILVER TRILLION INVESTMENTS LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with ParentParent or Merger Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescissionrecession, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Guaranteed Obligations are payable), ; (iii) the any addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligations as a result of payment in full of the Guaranteed Obligations in accordance with their terms, a discharge or release of Parent with respect to the Guaranteed Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (vi) except as provided herein, the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwiseotherwise (other than a discharge of Parent with respect to the Guaranteed Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement); (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Guaranteed Obligations as a result of payment in full of the Guaranteed Obligations in accordance with their terms, a discharge of Parent with respect to the Guaranteed Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement) or ); (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. Guaranteed Obligations or (bix) the value, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement. To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. . (b) The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, effect or any right to require the marshalling of assets of Parent or Merger Sub or any other person Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Guaranteed Obligations or other amounts payable under this Limited Guarantee thereafter arising. . (d) Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to Section 3(a3(a)(v), the Guaranteed Party hereby agrees that: that (i) to the extent that Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeGuaranteed Obligations under the Merger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such corresponding payment obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations Guaranteed Obligations, as well as any defenses in respect of any fraud or willful misconduct of the Guaranteed Party hereunder or its Affiliates. (e) Each and every right, remedy and power hereby granted to the Guaranteed Party or allowed it by Law shall be cumulative and not exclusive of any breach other, and may be exercised by the Guaranteed Party at any time or from time to time. The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Party’s rights against, Parent or Merger Sub for any Guaranteed Obligations prior to proceeding against the Guarantor hereunder, and the failure by the Guaranteed Party to pursue rights or remedies against Parent or Merger Sub shall not relieve the Guarantor of any term hereofliability 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.

Appears in 2 contracts

Samples: Limited Guarantee (ChinaEquity USD Fund I L.P.), Limited Guarantee (Cnshangquan E-Commerce Co., Ltd.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to to, or further consent of of, the Guarantor, extend the time of payment of any portion the satisfaction of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person Obligations without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty. The Guarantor agrees that the obligations of Guarantor hereunder Obligations shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any entity or other Person interested in the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiif) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to of or satisfying the Obligations. (b) . To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind protest (other than but specifically excluding notices to be provided to Parent or and Merger Sub pursuant to and its counsel in accordance with the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling marshaling of the assets of Parent or Parent, Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than than, in each case, defenses to the payment satisfaction of the Obligations that are available to Parent or Merger Sub under the Merger Agreement and defenses of full payment or a breach by the Guaranteed Party performance of this Limited GuaranteeGuaranty or the Obligations). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) . The Obligations shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty, and all dealings among Parent, Merger Sub and the Guaranteed Party shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, under the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), Agreement against the Guarantor or any Non-Recourse Party Guarantor Affiliate (as defined in Section 9below), except for (1) claims against the Guarantor under this Limited Guarantee Guaranty; (subject to 2) any claim by the limitations described herein) and Guaranteed Party against the Other Guarantors Parent under the Other Guarantees Merger Agreement, (subject 3) any claim by the Guaranteed Party against Merger Sub under the Merger Agreement or (4) claims under the Confidentiality Agreement or any other transactions contemplated by the Merger Agreement to which the limitations described thereinGuarantor or any Guarantor Affiliate may be a party (collectively, the “Permitted Claims”). The , and the Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its respective Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee Guaranty or any term hereof is illegal, invalid or unenforceable in accordance with its terms. (d) . The Guarantor hereby unconditionally waives, and irrevocably waives and agrees shall not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Merger Sub any Guarantor Affiliate that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuaranty, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub Parent or any Other GuarantorGuarantor Affiliate, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub Parent or any Other GuarantorGuarantor Affiliate, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, in each case unless and until the earlier of (a) all of the Obligations and all other amounts payable by the Guarantor under this Limited Guarantee Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (iib) the Guarantor shall have all defenses date on which this Guaranty terminates pursuant to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofSection 7.

Appears in 1 contract

Samples: Guaranty (Vega MergerCo, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Limited Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Limited Guarantor, extend the time of payment of any portion of the ObligationsGuaranteed Obligation, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Buyer for the creation, extension, renewal, accrual, payment, compromise, modification, amendment, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person the Buyer without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty. The Subject to the other terms and conditions set forth herein, Limited Guarantor agrees that the obligations of Limited Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by, and Limited Guarantor hereby expressly waives to the fullest extent permitted by Law any defense now or in the future arising by reason of: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor the Buyer or any other entity or person interested in the Transactions, transactions contemplated by the Asset Purchase Agreement (including the Financing contemplated thereby) or the Merger Agreement; (ii) any change in the time, place place, manner or manner terms of payment of any portion of the Obligations Guaranteed Obligation or any rescission, waiver, compromise, consolidation or any change or extension of the time of payment or performance of, renewal or alteration of the Guaranteed Obligation, any liability incurred directly or indirectly in respect thereof, or other amendment or modification or waiver of or consent to any departure from any of the terms or provisions of the Asset Purchase Agreement (including the Financing contemplated thereby) or the Merger Agreement made in accordance with the terms thereof or any agreement evidencingAgreement, securing or otherwise executed in connection with any portion of the Obligations (in each caseso long as, except in the event case of any amendment to or modification of, or waiver by the circumstances under which Buyer of the Obligations are payable)Guarantee Obligations, the prior written consent of Limited Guarantor is obtained for any such modification, amendment or waiver; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any other entity or person interested in the Guarantor with respect to transactions contemplated by the Obligations as a result of payment in full of Asset Purchase Agreement (including the Obligations in accordance with their terms, a discharge Financing contemplated thereby) or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub the Buyer or any other entity or person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Asset Purchase Agreement (including any Other Guarantor), the Financing contemplated thereby) or the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub the Buyer or any other entity or person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Asset Purchase Agreement (including any Other Guarantor), (vithe Financing contemplated thereby) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or ; (viiivi) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to of the Guaranteed Obligations; or (vii) the value, genuineness, validity, regularity, illegality or enforceability of the Asset Purchase Agreement, the Merger Agreement or this Limited Guarantee, in each case in accordance with its terms. (b) To the fullest extent permitted by Law, the Limited Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Limited Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the ObligationsGuaranteed Obligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations Guaranteed Obligation incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub the Buyer or any other entity or other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Asset Purchase Agreement, and all suretyship defenses generally (other than defenses generally. Limited Guarantor further expressly waives the benefit of any and all statutes of limitation, to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach fullest extent permitted by the Guaranteed Party of this applicable Law. Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Asset Purchase Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Limited Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, in any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee Guaranty is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) terms except to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses in respect of fraud or willful misconduct of the Guaranteed Party hereunder or any breach expressly contemplated by the Guaranteed Party terms of any term hereofthis letter agreement.

Appears in 1 contract

Samples: Limited Guaranty (NewStar Financial, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with ParentPurchaser, Merger Sub or any Other Guarantor or with any other person interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and ParentPurchaser, Merger Sub or any such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against ParentPurchaser, Merger Sub, any Other Guarantor Sub or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed by Purchaser, Merger Sub and the Guaranteed Party in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any person interested in the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of ParentPurchaser, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting ParentPurchaser, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including f) any Other Guarantor)lack of validity or enforceability of the Merger Agreement or any agreement or instrument relating thereto, other than by reason of fraud or willful misconduct by the Guaranteed Party; (vig) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Purchaser, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiih) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub pursuant be provided to Purchaser and Weil, Gotshal & Mxxxxx LLP in accordance with Section 8.7 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Purchaser, Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Subsidiaries, defenses to the payment of the Obligations that are available to Parent Purchaser or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) controlled affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)transactions contemplated thereby, against the any Guarantor or any Non-Recourse Party Purchaser Affiliate (as defined in Section 9), hereinafter defined) except for claims against the Guarantor under this Limited Guarantee (subject to Guarantee, and the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates respective affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. , subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and general equitable principles (d) whether considered in a proceeding in equity or at law). The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Purchaser, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against ParentPurchaser, Merger Sub or any Other Guarantorsuch other person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Purchaser. Merger Sub or any Other Guarantorsuch other person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Purchaser is relieved from its obligations under Section 7.2(c) of the Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeAgreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations Obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 1 contract

Samples: Limited Guarantee (Fidelity National Financial, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the any Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee; provided, however, that nothing contained in this Limited Guarantee is intended to modify or supersede the provisions of the Merger Agreement as between the Guaranteed Party, Parent and Merger Sub. The Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the any failure or delay on the part of the Guaranteed Party to assert in asserting any claim or demand or to enforce any right or remedy against Parent, Parent or Merger Sub, any Other Guarantor or any other person interested in the Transactions, ; (iib) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement (other than amendments to the Guaranteed Obligations or any Equity Commitments) made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Guaranteed Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge any entity or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person other Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ivd) any change in the corporate legal existence, structure or ownership of Parent, Parent or Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor)e) without derogating from the Guaranteed Party’s obligations under the penultimate paragraph of Section 1 hereof, (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Parent or Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that the which such Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations. ; (bh) To the fullest extent permitted by Lawvalue, the Guarantor hereby expressly waives any and all rights genuineness, validity, regularity, illegality or defenses arising by reason enforceability of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement in accordance with its terms; or this Limited Guarantee), all defenses that may be available by virtue (i) any change in the Laws of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)jurisdiction. The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise assert any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee shall (subject to the Cap) have been paid in full in immediately available funds. If any amount shall be paid to the a Guarantor in violation of the immediately preceding sentence at any time prior to the payment satisfaction in full in immediately available funds of all of the Obligations and all other amounts payable under this Limited GuaranteeGuaranteed Obligations, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmaturedGuaranteed Obligations, or to be held as collateral for the Guaranteed Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: that (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to Parent or Merger Sub’s representations, warranties, covenants or agreements contained in the Parent Termination FeeMerger Agreement are waived by the Guaranteed Party or otherwise satisfied, the then each Guarantor shall be similarly relieved of its corresponding Guaranteed Percentage of such obligations under this Limited Guarantee Obligations and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) Guaranteed Obligations that would be available to Parent and/or or Merger Sub under the Merger Agreement with respect to the 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 hereofAgreement.

Appears in 1 contract

Samples: Limited Guarantee (GB Aero Engine Merger Sub Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions Subsidiary for the extension, renewal, payment, compromise, modification, amendment, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person Subsidiary without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee; provided, however, that nothing contained in this Limited Guarantee is intended to modify or supersede the Merger Agreement. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Parent or Merger Sub, any Other Guarantor Subsidiary or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place place, manner or manner terms of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with Agreement, the terms thereof Equity Commitment Letter or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any other Person interested in the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Parent or Merger Sub Subsidiary or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Parent or Merger Sub Subsidiary or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated in the Merger Agreement; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that rights which the Guarantor may have at any time against Parent or Parent, Merger Sub Subsidiary or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.the

Appears in 1 contract

Samples: Limited Guarantee (Ruby Tuesday Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, Beneficiaries may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment performance of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Obligors for the creation, extension, renewal, accrual, acceleration, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Beneficiaries and Parent, Merger Sub or such other person the Obligors without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party Beneficiaries to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor the Obligors or any other person Person interested in the Transactions, transactions contemplated by the Purchase Agreement; (iib) any change in the time, place place, manner or manner terms of payment performance of any portion of the Obligations or any rescission, waiver, compromise, consolidation or any change or extension of the time of payment or performance of, renewal or alteration of, any of the Obligations, any escrow arrangement or other security therefor, any liability incurred directly or indirectly in respect thereof, or other amendment or modification or waiver of or consent to any departure from any of the terms or provisions of the Merger Purchase Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable)Obligations, (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any other Person interested in the Guarantor with respect to transactions contemplated by the Obligations as a result of payment in full of the Obligations Purchase Agreement in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment terms of the Obligations that would be available to Parent under the Merger Purchase Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ; (including any Other Guarantor), (ivd) any change in the corporate limited liability company or corporate, as applicable, existence, structure or ownership of Parent, Merger Sub any Obligor or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Purchase Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub any Obligor or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated in the Purchase Agreement; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that rights which the Guarantor may have at any time against Parent or Merger Sub the Obligors or the Guaranteed PartyBeneficiaries, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party Beneficiaries may have of obtaining payment related to performance of the Obligations or (h) the value, genuineness, validity, regularity, illegality or enforceability of the Purchase Agreement or the Obligations. (b) . To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartyBeneficiaries. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for paymentperformance, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub the Obligors or any other person entity or other Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Purchase Agreement, and all suretyship defenses generally (other than defenses to the payment performance of the Obligations that are available to Parent or Merger Sub the Obligors under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteePurchase Agreement). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Purchase Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party Beneficiaries hereby agrees that: (i) agree that to the extent Parent and Merger Sub the Obligors are relieved of any of their obligations with respect under and pursuant to the Parent Termination Feeterms of the Purchase Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations Obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 1 contract

Samples: Guarantee (Emmis Communications Corp)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees Guarantors agree that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the any Guarantor, extend the time of payment of any portion of the ObligationsObligation, and may also make enter into any agreement with Parent, Merger Sub or any Other Guarantor or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof of the Merger Agreement or of any agreement between the Guaranteed Party and Parent, Merger Sub or any such other person Person without in any way impairing or affecting the Guarantor’s obligations of the Guarantors under this Limited Guarantee. The Guarantor agrees Guarantors agree that the their obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) any delay or the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations Obligation or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligation; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor any entity or other Person now or hereinafter liable with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations Obligation or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ivd) any change in the corporate or other applicable existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, reorganization winding up, moratorium, receivership, dissolution, assignment for the benefit of the creditors, reorganization, arrangement, composition with creditors or readjustment, or other similar proceeding or any other inability to pay or perform affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement or affecting any of their respective assets; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that which the Guarantor Guarantors may have at any time against Parent or Parent, Merger Sub or the Guaranteed PartyParty (or the existence of any claim, set-off or other right that Parent, Merger Sub or the Guaranteed Party may have at any time against the Guarantors), whether in connection with the Obligations Obligation or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (each case other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of defenses and rights that Parent with respect to the Obligations or Merger Sub have under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or ; (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment of the Obligation; (h) any lack of validity, regularity, illegality or enforceability of the Merger Agreement, the Equity Commitment Letters or any agreement or instrument related thereto, in each case in accordance with its terms (but subject to all defenses available to Parent or Merger Sub pursuant to any such agreement or instrument) or (i) any breach by Parent or Merger Sub of the Obligations. (b) Merger Agreement. To the fullest extent permitted by applicable Law, the Guarantor Guarantors hereby expressly waives waive any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives Guarantors waive promptness, diligence, notice of the acceptance of this Limited Guarantee and of the ObligationsObligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations Obligation incurred and all other notices of any kind (other than except for notices required to be provided to Parent or Merger Sub pursuant to in accordance with the Merger Agreement or this Limited GuaranteeAgreement), and all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement or now or hereinafter liable with respect to the Obligation, and all suretyship defenses generally (other than defenses to the payment of the Obligations Obligation that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of the Merger Agreement or this Limited Guarantee). The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guarantors hereby waive any and all notice of the creation, renewal, extension or accrual of the Obligation and notice of or proof of reliance by the Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under upon this Limited Guarantee (subject to or the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein)Obligation hereunder. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations Obligation under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Obligation (subject to the Cap) shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor Guarantors in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited GuaranteeObligation, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor Guarantors and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations Obligation. Subject to all of the other provisions of this Section 3 and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)4, the Guaranteed Party hereby agrees that: (i) to that the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor Guarantors shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that are or would be available to Parent and/or or Merger Sub under pursuant to the terms of the Merger Agreement with respect to the 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 hereofObligation.

Appears in 1 contract

Samples: Limited Guarantee (CCP SBS Gp, LLC)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that that, subject to the terms hereof, the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the ObligationsObligations in accordance with Section 9.11 of the Merger Agreement, and may also make enter into any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions transactions contemplated by the Merger Agreement for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof of the Merger Agreement or of any agreement between the Guaranteed Party Party, on the one hand, and ParentParent or Merger Sub, on the other hand, in each case in accordance with the terms of the Merger Sub or such other person Agreement, without in any way impairing or affecting the Guarantor’s obligations under as provided in this Limited Guarantee. The Guaranteed Party shall not release any of the Other Guarantors from, or extend the time of payment of, any obligations under such Other Guarantees or amend or waive any provision of such Other Guarantees except to the extent the Guarantor under this Limited Guarantee is released, the payment obligation under this Limited Guarantee is extended or the provisions of the Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. The Guarantor agrees that that, except as set forth in clause (i) in the last sentence of Section 3(c) and except for termination in accordance with Section 8 of this Limited Guarantee, the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any escrow arrangement or other security therefor, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made (in each case, to the extent effected in accordance with the terms thereof of the Merger Agreement) or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (Obligations, in each case, except in the event of any amendment to the circumstances under which extent any of the Obligations are payable), foregoing does not have the effect of increasing the Cap; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Percentage of the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement or any of their respective assets or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Obligations; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the applicable Obligations in accordance with their its terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ); or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to be provided to Parent or Merger Sub pursuant to in accordance with the Merger Agreement or Agreement, this Limited GuaranteeGuarantee or any other agreement or instrument delivered herewith or therewith), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar applicable Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally generally. Notwithstanding anything herein to the contrary, each of the following defenses shall be retained by the Guarantor: (other than x) defenses to the payment of the Obligations that are available to Parent or Parent, Merger Sub under the Merger Agreement or a Agreement; (y) breach by the Guaranteed Party of this Limited Guarantee; and (z) fraud or willful misconduct by the Guaranteed Party or any of its Affiliates (which, for the purpose of this sentence, shall exclude the Founder, the Founder Holdco, the Guarantor, any Other Guarantor, Sponsors, Rollover Shareholders, Supporting Shareholders, or any Affiliate thereof). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and it shall cause its Subsidiaries and its their respective officers, directors, managers or Affiliates (whichcollectively, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee“Guaranteed Party Related Persons”) not to institute, directly or indirectly, in the name of or on behalf of the Guaranteed Party or any other person, any action, suit or proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited Parent dated the date hereof (the “Equity Commitment Letter”, and together with the other equity commitment letters between each Other Guarantor Guarantor, as applicable, and Goliath Group Holdings LimitedParent, collectively, the “Equity Commitment Letters”), the Support Agreement, the Rollover Agreement (this Limited Guarantee, the Other Guarantees, the Merger Agreement, the Equity Commitment Letters, the Support Agreement and the Rollover Agreement, collectively, the “Transaction Agreements”), any other agreement or instrument delivered pursuant to such Transaction Agreements, or any of the transactions contemplated hereby or thereby, or in respect of any written or oral representations made or alleged to have been made in connection herewith or therewith, whether at law, in equity, in contract, in tort or otherwise, against Parent, Merger Sub, the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against (i) Parent and Merger Sub under and to the extent expressly provided in the Merger Agreement, (ii) the Guarantor (but not any Non-Recourse Party) under (and to the extent permitted by) this Limited Guarantee by the Guaranteed Party (subject to the limitations described herein), (iii) each Other Guarantor under (and against to the extent permitted by) its Other Guarantors under the Other Guarantees Guarantee (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries (iv) the Guarantor, the Other Guarantors and its Affiliates not their respective successors and permitted assigns under the Equity Commitment Letters pursuant to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable and in accordance with its termsthe terms of the Equity Commitment Letters and the Merger Agreement (claims under clauses (i) through (iv) collectively, the “Retained Claims”). (dc) The Except as set forth in Sections 2 and 3 hereof, the Guarantor hereby unconditionally and irrevocably waives waives, and agrees not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee (subject to the limitations described herein) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee (subject to the limitations described herein) shall have been paid in full in immediately available fundsfunds by the Guarantor (or by any other person, including Parent or Merger Sub, on behalf of the Guarantor). If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all (subject to the limitations described herein) by the Guarantor (or by any other amounts payable under this Limited Guaranteeperson, including Parent or Merger Sub, on behalf of the Guarantor), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Percentage of the Obligations (subject to the limitations described herein) in accordance with the terms of the Merger Agreement and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for such Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising(subject to the limitations described herein). Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to clause (v) under Section 3(a), the Guaranteed Party hereby agrees that: , (i) to the extent Parent the Obligations are not payable pursuant to, and in accordance with, the Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeAgreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations to make payments under this Limited Guarantee for the same obligation for which Parent and Merger Sub were relieved under the Merger Agreement, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicablelimitations described herein) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses defense in respect of fraud or willful misconduct of the Guaranteed Party or the Guaranteed Party Related Persons hereunder or any breach by the Guaranteed Party of any term hereof.

Appears in 1 contract

Samples: Limited Guarantee (58.com Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. 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 except to the extent the Guarantor under this Limited Guarantee is released or the provisions of this Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantors under the Other Guarantees shall be several and not joint. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or dischargeddischarged (except in the case where this Limited Guarantee is terminated in accordance with Section 8 hereof or as set forth in the last sentence of Section 3(d) hereof), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the TransactionsGuarantor, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable)Obligations, (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (viv) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (viv) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (viivi) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, or a discharge of Parent with respect to the Obligations under the Merger Agreement), or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiivii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor hereby waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the ObligationsObligations guaranteed hereunder, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in liable with respect to the Transactions (including any Other Guarantor)Obligations, and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Transactions Transactions, or the Equity Commitment Letter Letter, dated May 29, 2018, between the Guarantor and Goliath Group Holdings Limited the Parent (as amended from time to time, the “Equity Commitment Letter”, and together with the other equity commitment letters between Taobao China Holding Limited, Yunfeng Fund III, L.P., and Yunfeng Fund III Parallel Fund, L.P., respectively, on the one hand, and the Parent, on the other hand, as each Other Guarantor and Goliath Group Holdings Limitedmay be amended from time to time, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and ), claims against the Other Guarantors under the Other Guarantees (subject to the limitations described therein) and claims against the Guarantor, Parent and/or Merger Sub for any Retained Claim (as defined in Section 9) (subject to the limitations described herein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, institute any proceeding asserting or assert as a defense in any proceedingproceeding that this Limited Guarantee or the Merger Agreement is illegal, subject to clause invalid or unenforceable in accordance with its applicable terms (ii) but, for the avoidance of doubt, other than by reason of fraud of the last sentence Company as determined in a final, non-appealable judicial or arbitral decision). For purposes of clause this Limited Guarantee, “Affiliates” of any person means any person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such person. The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (dincluding reasonable fees and expenses of counsel) hereofincurred by the Guaranteed Party in connection with the enforcement of its rights hereunder if (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its termsterms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundsfunds to the Guaranteed Party by the Guarantor (or by any other person, including Parent or Merger Sub, on behalf of the Guarantor). If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee (subject to the Cap) to the Guaranteed Party by the Guarantor (or by any other person, including Parent or Merger Sub, on behalf of the Guarantor), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the payment of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, until they are paid in full (subject to the Cap) or to be held as collateral for the Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to subsection (iv) under Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their payment obligations with respect to the Parent Termination FeeObligations by the satisfaction in full thereof or pursuant to a written agreement with the Guaranteed Party, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses defense in respect of fraud or willful misconduct of the Guaranteed Party hereunder or its Affiliates hereunder, or any breach by the Guaranteed Party of any term hereof, in each case, as determined in a final, non-appealable judicial or arbitral decision.

Appears in 1 contract

Samples: Limited Guarantee (iKang Healthcare Group, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Zac for the amendment, modification, extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting any of the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the its obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, Zac; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (ivc) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Zac; (including any Other Guarantor), (vd) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Zac; (including any Other Guarantor), (vie) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub Zac or the Guaranteed PartyCompany, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiif) the adequacy of any other means the Guaranteed Party Company may have of obtaining payment related to the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor hereby waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices notice to Parent or Merger Sub Zac pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)Zac, and all suretyship defenses generally (other than fraud or willful misconduct by the Company or any of its subsidiaries or affiliates, defenses to the payment of the Obligations that are available to Parent or Merger Sub Zac under the Merger Agreement or a breach by the Guaranteed Party Company of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants expressly and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub Zac that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party Company against Parent, Merger Sub or any Other GuarantorZac, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other GuarantorZac, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed PartyCompany, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party Company hereby agrees that: (i) that to the extent Parent and Merger Sub are Zac is relieved of any of their Zac’s obligations with respect to the Parent Termination FeeObligations, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantee; provided, that Guarantor shall have all defenses to the payment not be relieved of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 a result of any term hereofinsolvency, bankruptcy, reorganization, or similar proceeding affecting Zac or as a result of any Company action taken directly or indirectly by Guarantor.

Appears in 1 contract

Samples: Limited Guarantee (Zones Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees Guarantors agree that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the GuarantorGuarantors, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees Guarantors agree that the obligations of Guarantor the Guarantors hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Parent or Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge substitution or release (of any other Person interested in the case transactions contemplated by the Merger Agreement; (d) any change in the corporate existence, structure or ownership of Parent or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement; (e) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or Merger Sub or any other Person interested in the transactions contemplated in the Merger Agreement; (f) the existence of any claim, set-off or other rights which any Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise; (g) the adequacy of any other means the Guaranteed Party may have of obtaining payment of the Obligations; or (h) any discharge of the Guarantors as a discharge or release, matter of applicable law (other than a discharge or release of the Guarantor with respect to the Obligations Guarantors as a result of payment in full of the Obligations in accordance with their terms, a discharge or release the terms of Parent with respect to the Obligations under the Merger Agreement, Agreement or as a result of defenses to the payment of the Obligations that would be available to Parent or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor Guarantors hereby expressly waives waive any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives Guarantors waive promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to be provided to Parent or and Merger Sub pursuant to in accordance with Section 9.09 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship surety ship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach fraud by the Guaranteed Party or any of this Limited Guaranteeits affiliates). The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, performance or enforcement of the such Guarantor’s obligations under under, on with or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and such Guarantor shall not exercise any such rights unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the either Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under under, in respect of or in connection with this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under by such Guarantor under, in respect of or in connection with this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their payment obligations with respect to under the Parent Termination FeeMerger Agreement, the Guarantor Guarantors shall be similarly relieved of its Guaranteed Percentage of such obligations their corresponding Obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses but only to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the same extent applicable) that would be available to Parent and/or or Merger Sub under the Merger Agreement with respect to the 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 hereofare so relieved.

Appears in 1 contract

Samples: Guarantee (Symyx Technologies Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent obligations of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Guarantor, Parent, Merger Sub, any Other Guarantor Sub or any other person interested in the Transactions, Person; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any Person interested in the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of the Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Person; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. ; or (bviii) To the fullest extent permitted by Lawvalue, genuineness, validity, regularity, illegality or enforceability according to their terms of the Guarantor hereby expressly waives any and all rights Merger Agreement or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed PartyEquity Financing Commitment. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performancenonperformance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of the Parent or Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (generally, other than defenses to the payment of the Obligations that are available to the Parent and Merger Sub (a) under the Merger Agreement (other than any such defenses arising out of, or due to, or as a result of, the insolvency or bankruptcy of the Parent or Merger Sub under (including, without limitation, the rejection of the Merger Agreement in an insolvency or bankruptcy of the Parent or Merger Sub)) and (b) in respect of a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any litigation or other proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. The Guarantor agrees to pay on demand all reasonable out-of-pocket expenses (including reasonable fees of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder if the Guaranteed Party prevails in such litigation or proceeding. (dc) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against the Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithwith this Guarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, the Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, the Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash; provided that the Guarantor shall have the right to cause any other person to satisfy its payment obligations to the Guaranteed Party hereunder. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such an amount equal to the lesser of (i) the amount paid to the Guarantor in violation of the immediately preceding sentence and (ii) all amounts payable under this Guarantee shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for any of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the . d) The Guaranteed Party hereby covenants and agrees that: that it shall not institute, and shall cause its respective Affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby or otherwise relating thereto against any of the former, current and future equity holders, controlling persons, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or permitted assignees of the Guarantor, Merger Sub or Parent, or any former, current or future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent or assignee of any of the foregoing (i) those persons and entities described in any of the foregoing clauses, each being referred to as a “Non-Recourse Party”), except for claims against the extent Guarantor or its successors or permitted assigns under, or in connection with, this Limited Guarantee, the Equity Financing Commitment or the transactions contemplated hereby or thereby and against the Parent, Merger Sub or their respective successors and assigns under, or in connection with, the Merger Agreement or the Equity Financing Commitment or the transactions contemplated thereby. The maximum aggregate liability of the Guarantor, Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under Guarantee, the Merger Agreement with respect to and the Obligations as well as any defenses in respect of fraud or willful misconduct of Equity Commitment Letter shall not exceed the Guaranteed Party hereunder or any breach by the Guaranteed Party of any term hereofCap.

Appears in 1 contract

Samples: Limited Guarantee (Matrixx Initiatives Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or with any other Person (including any Other Guarantor or any other person Guarantor) interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or any such other person Person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement (iiincluding any Other Guarantor); (b) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof Agreement, or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any Person interested in the Guarantor with respect transactions contemplated by the Merger Agreement (including any Other Guarantor) to the Obligations as a result of payment in full of the Obligations in accordance with their termsor from this Limited Guarantee, a discharge or release of Parent with respect to the Obligations under any other guarantees, the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now related agreement or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions document; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Parent, Merger Sub pursuant to and Shearman & Sterling LLP in accordance with Section 10.6 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Affiliates (provided, that the Guaranteed Party acknowledges and agrees that neither Parent nor Merger Sub is an Affiliate of the Guaranteed Party), defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 1 contract

Samples: Limited Guarantee (Jasmine Holdco LLC)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make enter into any agreement with Parent, Merger Sub or any Other Guarantor Buyer or any other person Person controlled by Buyer and interested in the Transactions transaction contemplated by the Investment Agreement (an “Interested Person”) for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof Investment Agreement or of any agreement between the Guaranteed Party and Parent, Merger Sub Buyer or any such other person Interested Person without in any way impairing or affecting the Guarantor’s obligations Obligations under this Limited Guarantee. The Guarantor agrees that the obligations Obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Buyer or any other person interested in the Transactions, Interested Person; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with Investment Agreement, except to the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion extent Buyer has a defense to the payment of the Obligations (in each caseunder such rescission, except in the event of any waiver, compromise, consolidation or other amendment to the circumstances under which the Obligations are payable), or modification; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Interested Person; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Buyer or any other person now or hereafter liable with respect to any portion of Interested Person (other than the Obligations or otherwise Company) interested in the Transactions transactions contemplated by the Investment Agreement; (including any Other Guarantor), (viv) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub Buyer or the Guaranteed PartyParty or any of their respective Affiliates, whether relating to, arising out of or in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge those described in the last sentence of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) Section 2); or (viiivi) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub be provided pursuant to the Merger Agreement or this Limited GuaranteeGuarantee or to Buyer and its counsel in accordance with the Investment Agreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Applicable Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub Buyer or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Investment Agreement, and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent fraud or Merger Sub under the Merger Agreement or a breach willful misconduct by the Guaranteed Party or any of its Affiliates). Notwithstanding anything to the contrary contained in this Limited Guarantee, the Guaranteed Party hereby agrees that to the extent that Buyer is relieved of any of its obligations and liabilities under the Investment Agreement (other than due to, in connection with, or as a result of, the insolvency or bankruptcy of Buyer), the Guarantor shall be similarly relieved of the Obligations under this Limited Guarantee. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from Notwithstanding anything to the Transactions and that the waivers set forth contrary in this Limited Guarantee, any payment made by or on behalf of Buyer to the Guaranteed Party with respect to an Obligation shall reduce the total Obligations of the Guarantor under this Limited Guarantee are knowingly made in contemplation by the amount of such benefitspayment. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly institute or indirectlyassert, and shall cause its Subsidiaries Affiliates and its Affiliates (whichany controlled Person claiming by, for the avoidance through or on behalf of doubtany of them, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly institute or indirectly, assert any action or proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party Claim (as defined in Section 9), or any claim, cause of action or proceeding arising out of, connected to or in any manner relating to the Investment Agreement or the transactions contemplated thereby, of any kind whatsoever against the Guarantor or any Non-Parties (as defined in Section 9) except for claims (i) against the Guarantor under and pursuant to this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause and/or (ii) of against Buyer under and pursuant to the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its termsInvestment Agreement. (dc) The Except as explicitly set forth herein or in the Investment Agreement, the Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent Buyer or Merger Sub any other Person interested in the transactions contemplated by the Investment Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim Claim or remedy of the Guaranteed Party against Parent, Merger Sub Buyer or any Other Guarantorsuch other Person, whether or not such claimClaim, remedy or right arises in equity or under contractContract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub Buyer or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claimClaim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been irrevocably and unconditionally paid in full in immediately available fundscash, provided, that the Guarantor shall have the right to cause any other Person to satisfy its Obligations to the Guaranteed Party hereunder; provided, further, that the Guarantor shall remain obligated with respect to such Obligations until so satisfied. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations Obligations, an amount equal to the lesser of (i) the amount paid to the Guarantor in violation of the immediately preceding sentence, and (ii) all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered by the Guarantor to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeObligations, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofexisting.

Appears in 1 contract

Samples: Limited Guarantee (Graftech International LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the ObligationsObligations (provided that the foregoing shall be subject to the consent of Buyer and Acquisition Sub to the extent such extension involves an amendment of the Merger Agreement), and may also make any agreement with ParentBuyer or Acquisition Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Buyer and/or Acquisition Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor Obligations hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure (or delay on the part delay) of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Buyer or Acquisition Sub or any other person interested in the Transactionstransactions contemplated by the Merger Agreement (including any other guarantor pursuant to a Limited Guarantee dated as of the date hereof to be entered into between the Guaranteed Party and such other guarantor (collectively, the “Other Guarantors”); (iib) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Buyer or Acquisition Sub or any other person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor); (c) the existence of any claim, set-off or other right which the Guarantor may have at any time against Buyer or Acquisition Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise; (d) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Obligations; (e) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiif) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any entity or other person interested in the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, ; or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (ivg) any change in the corporate existence, structure or ownership of Parent, Merger Sub Buyer or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) Acquisition Sub. To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent be provided to Buyer or Merger Acquisition Sub pursuant to and its counsel Weil, Gotshal & Xxxxxx LLP in accordance with Section 9.2 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent Buyer or Merger Acquisition Sub or any other person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its subsidiaries or affiliates, defenses to the payment of the Obligations under the Merger Agreement that are available to Parent Buyer or Merger Acquisition Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives covenants and agrees not to exercise any rights that it may now have or hereafter acquire against Parent Buyer, Acquisition Sub or Merger Sub any of the Other Guarantors, in each case that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other GuarantorBuyer and/or Acquisition Sub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other GuarantorBuyer and/or Acquisition Sub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited GuaranteeObligations, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeObligations, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its subsidiaries and affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby, against any Guarantor or Buyer Affiliate, except for claims against the Guarantor under this Limited Guarantee and against Other Guarantors under their written limited guarantees. The Guarantor hereby covenants and agrees that it shall not institute, and shall cause its subsidiaries and affiliates not to institute, any proceeding asserting that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding in equity or at law). Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent Buyer and Merger Acquisition Sub are relieved of all or any portion of their obligations with respect to Obligations under the Parent Termination FeeMerger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations Obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 1 contract

Samples: Limited Guarantee (Univision Communications Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that that, subject to the terms hereof, the Guaranteed Party may, in its sole discretion, discretion at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of or waive the ObligationsObligations in accordance with Section 9.11 of the Merger Agreement, and may also make enter into any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof of the Merger Agreement or of any agreement between the Guaranteed Party Party, on the one hand, and ParentMerger Sub, on the other hand, in each case in accordance with the terms of the Merger Sub or such other person Agreement, without in any way impairing or affecting the Guarantor’s obligations as provided in this Limited Guarantee; provided, that the consent of the Guarantor shall be required to the extent it has the effect of expanding the circumstances under which the obligations will be payable. 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 except to the extent the Guarantor under this Limited GuaranteeGuarantee is released or the provisions of the Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. The Guarantor agrees that that, except as set forth in clause (i) in the last sentence of Section 3(c) and except for termination in accordance with Section 8 of this Limited Guarantee, the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any escrow arrangement or other security therefor, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made (in each case, to the extent effected in accordance with the terms thereof of the Merger Agreement) or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (Obligations, in each case, except in the event of any amendment to the circumstances under which extent any of the Obligations are payable), foregoing does not have the effect of increasing the Cap; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Percentage of the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent Merger Sub by the Company with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement or any of their respective assets or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Obligations; (vi) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor Guarantor’s obligations as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the applicable Obligations in accordance with their its terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or ); (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. ; or (bix) the value of the Other Guarantees or any other agreement or instrument referred to herein or therein. To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Merger Sub pursuant to in accordance with the Merger Agreement or Agreement, this Limited GuaranteeGuarantee or any other agreement or instrument delivered herewith or therewith), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar applicable Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally generally. Notwithstanding anything herein to the contrary, each of the following defenses shall be retained by the Guarantor: (other than i) defenses to the payment of the Obligations that are available to Parent or Merger Sub or any other person under the Merger Agreement or a Agreement; (ii) breach by the Guaranteed Party of this Limited Guarantee); and (iii) fraud or willful misconduct by the Guaranteed Party or any of the Guaranteed Party Related Persons. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and it shall cause its Subsidiaries and its other controlled Affiliates and their respective officers and directors (whichcollectively but excluding any member of Merger Sub Group, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee“Guaranteed Party Related Persons”) not to institute, directly or indirectly, in the name of or on behalf of the Guaranteed Party or any other person, any action, suit or proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between the Guarantor amended and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other restated equity commitment letters between each Other Guarantor and Goliath Group Holdings 51 Elevate Limited, as applicable, and Merger Sub, collectively, the “Equity Commitment Letters”) and the Support Agreements (this Limited Guarantee, the Other Guarantees, the Merger Agreement, the Equity Commitment Letters and the Support Agreements, collectively, the “Transaction Agreements”), any other agreement or instrument delivered pursuant to such Transaction Agreements, or any of the transactions contemplated hereby or thereby, or in respect of any written or oral representations made or alleged to have been made in connection herewith or therewith, whether at law, in equity, in contract, in tort or otherwise, against Merger Sub, the Guarantor or any Non-Recourse Party (as defined in Section 9below), except for claims against (i) Merger Sub and its successors and assigns under and to the extent expressly provided in the Merger Agreement, (ii) the Guarantor (but not any Non-Recourse Party) and its successors and assigns under (and to the extent permitted by) this Limited Guarantee by the Guaranteed Party (subject to the Cap and the other limitations described herein), (iii) each Other Guarantor and its successors and assigns under (and to the extent permitted by) its Other Guarantee (subject to the Cap as defined in such Other Guarantee and the other limitations described therein), (iv) the Other Guarantors and their respective successors and permitted assigns under the Equity Commitment Letters pursuant to and in accordance with the terms of the Equity Commitment Letters and the Merger Agreement and (v) the Continuing Shareholders under the Support Agreements pursuant to and in accordance with the terms of the Support Agreements (claims under clauses (i) through (v) collectively, the “Retained Claims”). Notwithstanding anything in this Agreement to the contrary, but, for the avoidance of doubt, without prejudice to any right to specific performance the Guaranteed Party may have under any Transaction Agreement, in no event shall the Guaranteed Party be entitled to claim, seek or collect money damages from the Guarantor under this Limited Guarantee or any other Transaction Agreement in connection with a Retained Claim involving an aggregate amount payable (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) inclusive of the last sentence Guarantor’s payment of clause (dthe Guaranteed Percentage of the Obligations) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its termswould exceed the Cap. (dc) The Guarantor hereby unconditionally and irrevocably waives waives, and agrees not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee (subject to the Cap and the other limitations described herein) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee (subject to the Cap) shall have been paid in full in immediately available fundsfunds by the Guarantor (or by any other person, including Merger Sub, on behalf of the Guarantor) to the Guaranteed Party. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all (subject to the Cap) by the Guarantor (or by any other amounts payable under this Limited Guaranteeperson, including Merger Sub, on behalf of the Guarantor) to the Guaranteed Party, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Percentage of the Obligations (subject to the Cap) in accordance with the terms of the Merger Agreement and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for such Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising(subject to the Cap). Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to clause (v) under Section 3(a), the Guaranteed Party hereby agrees that: , (i) to the extent Parent the Obligations are not payable pursuant to, and in accordance with, the Merger Sub are relieved of any of their obligations with respect to the Parent Termination FeeAgreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations to make payments under this Limited Guarantee for the same obligation for which Merger Sub were relieved under the Merger Agreement, and (ii) the Guarantor shall have the right to assert and shall have the benefit of all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to and the extent applicableother limitations described herein) that would be available to Parent and/or Merger Sub (whether or not any such defense has been asserted by Merger Sub) under the Merger Agreement with respect to the Obligations as well as any defenses defense in respect of fraud or willful misconduct of the Guaranteed Party or the Guaranteed Party Related Persons hereunder or any breach by the Guaranteed Party of any term hereof.

Appears in 1 contract

Samples: Limited Guarantee (Recruit Holdings Co., Ltd.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the GuarantorGuarantors, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Parent for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s Guarantors’ obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Parent or any other person interested in the Transactions, Guarantor; (iib) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof thereof; (c) any change in the legal existence, structure or ownership of Parent or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ivd) any change in the corporate existenceinsolvency, structure bankruptcy, winding up, moratorium, receivership, dissolution, reorganization or ownership of Parent, Merger Sub other similar proceeding affecting Parent or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or ; (viiie) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations. ; or (bf) except in each case, such validity, genuineness, regularity, illegality or enforceability of the Merger Agreement that relates to the Guaranteed Obligations (it being understood that each Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee that are or would be available to Parent pursuant to the terms of the Merger Agreement with respect to its Guaranteed Obligation), the validity, genuineness, regularity, illegality or enforceability of the Merger Agreement, including (x) resulting from a breach of any representation, warranty or covenant in the Merger Agreement by Parent or Merger Sub, other than by reason of fraud or material breach of the Merger Agreement by the Guaranteed Party or (y) pursuant to or in connection with or arising from, in or under, any bankruptcy, reorganization, insolvency or other similar proceeding commenced by or against Parent or Merger Sub. To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The each Guarantor waives (i) promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, ; (ii) presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices required to be delivered to Parent or Merger Sub by the Guaranteed Party pursuant to the Merger Agreement or this Limited GuaranteeAgreement), ; (iii) all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, ; or (iv) any right to require the marshalling marshaling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may Person now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations liable with respect to the Parent Termination FeeGuaranteed Obligations and all surety defenses generally, other than the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and Retained Defenses (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.defined

Appears in 1 contract

Samples: Limited Guarantee (Enstar Group LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that that, subject to the terms hereof, the Guaranteed Party may, in its sole discretion, discretion at any time and from time to time, without notice to or further consent of the GuarantorGuarantors, extend the time of payment of any portion of or waive the ObligationsObligations in accordance with Section 9.11 of the Merger Agreement, and may also make enter into any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof of the Merger Agreement or of any agreement between the Guaranteed Party Party, on the one hand, and ParentMerger Sub, on the other hand, in each case in accordance with the terms of the Merger Sub or such other person Agreement, without in any way impairing or affecting the Guarantor’s Guarantors’ obligations as provided in this Limited Guarantee; provided, that the consent of the Guarantors shall be required to the extent it has the effect of expanding the circumstances under which the obligations will be payable. 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 except to the extent the Guarantors under this Limited GuaranteeGuarantee are released or the provisions of the Limited Guarantee are amended or waived, in each case, on terms and conditions no less favorable than those applicable to the Other Guarantees. The Each Guarantor agrees that that, except as set forth in clause (i) in the last sentence of Section 3(c) and except for termination in accordance with Section 8 of this Limited Guarantee, the obligations of Guarantor the Guarantors hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, Sub or any Other Guarantor or any other person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any escrow arrangement or other security therefor, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made (in each case, to the extent effected in accordance with the terms thereof of the Merger Agreement) or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (Obligations, in each case, except in the event of any amendment to the circumstances under which extent any of the Obligations are payable), foregoing does not have the effect of increasing the Cap; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor Guarantors with respect to the Guaranteed Percentage of the Obligations as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent Merger Sub by the Company with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement or any of their respective assets or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Obligations; (vi) the existence of any claim, set-off or other right that which the Guarantor Guarantors may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor Guarantors or otherwise operate as a discharge of the Guarantor Guarantors’ obligations as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the applicable Obligations in accordance with their its terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or ); (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. ; or (bix) the value of the Other Guarantees or any other agreement or instrument referred to herein or therein. To the fullest extent permitted by applicable Law, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Merger Sub pursuant to in accordance with the Merger Agreement or Agreement, this Limited GuaranteeGuarantee or any other agreement or instrument delivered herewith or therewith), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar applicable Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally generally. Notwithstanding anything herein to the contrary, each of the following defenses shall be retained by the Guarantor: (other than i) defenses to the payment of the Obligations that are available to Parent or Merger Sub or any other person under the Merger Agreement or a Agreement; (ii) breach by the Guaranteed Party of this Limited Guarantee); and (iii) fraud or willful misconduct by the Guaranteed Party or any of the Guaranteed Party Related Persons. The Guarantor acknowledges Guarantors acknowledge that it they will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and it shall cause its Subsidiaries and its other controlled Affiliates and their respective officers and directors (whichcollectively but excluding any member of Merger Sub Group, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee“Guaranteed Party Related Persons”) not to institute, directly or indirectly, in the name of or on behalf of the Guaranteed Party or any other person, any action, suit or proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Transactions Agreement or the Amended and Restated Equity Commitment Letter between the Guarantor Guarantors and Goliath Group Holdings Limited Merger Sub dated the date hereof (the “Equity Commitment Letter”, and together with the other amended and restated equity commitment letters between each Other Guarantor and Goliath Group Holdings 51 Elevate Limited, as applicable, and Merger Sub, collectively, the “Equity Commitment Letters”) and the Support Agreements (this Limited Guarantee, the Other Guarantees, the Merger Agreement, the Equity Commitment Letters and the Support Agreements, collectively, the “Transaction Agreements”), any other agreement or instrument delivered pursuant to such Transaction Agreements, or any of the transactions contemplated hereby or thereby, or in respect of any written or oral representations made or alleged to have been made in connection herewith or therewith, whether at law, in equity, in contract, in tort or otherwise, against Merger Sub, the Guarantor Guarantors or any Non-Recourse Party (as defined in Section 9below), except for claims against (i) Merger Sub and its successors and assigns under and to the Guarantor extent expressly provided in the Merger Agreement, (ii) the Guarantors (but not any Non-Recourse Party) and their respective successors and assigns under (and to the extent permitted by) this Limited Guarantee by the Guaranteed Party (subject to the Cap and the other limitations described herein), (iii) each Other Guarantor and its successors and assigns under (and to the extent permitted by) its Other Guarantee (subject to the limitations described herein) Cap as defined in such Other Guarantee and against the Other Guarantors under the Other Guarantees (subject to the other limitations described therein). The Guarantor hereby covenants , (iv) the Guarantors, the Other Guarantors and agrees that it shall not institute, directly or indirectly, their respective successors and shall cause its Subsidiaries permitted assigns under the Equity Commitment Letters pursuant to and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its termsthe terms of the Equity Commitment Letters and the Merger Agreement and (v) the Continuing Shareholders under the Support Agreements pursuant to and in accordance with the terms of the Support Agreements (claims under clauses (i) through (v) collectively, the “Retained Claims”). (dc) The Each Guarantor hereby unconditionally and irrevocably waives waives, and agrees not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Obligations under or in respect of this Limited Guarantee (subject to the Cap and the other limitations described herein) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee (subject to the Cap) shall have been paid in full in immediately available fundsfunds by the Guarantors (or by any other person, including Merger Sub, on behalf of the Guarantor) to the Guaranteed Party. If any amount shall be paid to the any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all (subject to the Cap) by the Guarantors (or by any other amounts payable under this Limited Guaranteeperson, including Merger Sub, on behalf of the Guarantors) to the Guaranteed Party, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor Guarantors and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Percentage of the Obligations (subject to the Cap) in accordance with the terms of the Merger Agreement and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for such Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising(subject to the Cap). Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to clause (v) under Section 3(a), the Guaranteed Party hereby agrees that: , (i) to the extent Parent the Obligations are not payable pursuant to, and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Feein accordance with, the Merger Agreement, each Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations to make payments under this Limited Guarantee for the same obligation for which Merger Sub were relieved under the Merger Agreement, and (ii) the each Guarantor shall have the right to assert and shall have the benefit of all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to and the extent applicableother limitations described herein) that would be available to Parent and/or Merger Sub (whether or not any such defense has been asserted by Merger Sub) under the Merger Agreement with respect to the Obligations as well as any defenses defense in respect of fraud or willful misconduct of the Guaranteed Party or the Guaranteed Party Related Persons hereunder or any breach by the Guaranteed Party of any term hereof.

Appears in 1 contract

Samples: Limited Guarantee (Yan Rick)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party Company may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge discharge, or release thereofof any of the Obligations, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Company and Parent, Parent or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Parent or Merger Sub, any Other Guarantor or any other person interested in Sub with respect to the Transactions, Obligations; (ii) any agreement with Parent or Merger Sub with respect to (a) any change in the time, place or manner of payment of any portion of the Obligations or Obligations, (b) any rescission, waiver, compromise, consolidation consolidation, or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or (c) any other agreement evidencing, securing securing, or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), Obligations; (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Parent or Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Sub; (v) any insolvency, bankruptcy, reorganization reorganization, or other similar proceeding affecting Parent, Parent or Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), Sub; (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed PartySub, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, the Obligations, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) otherwise; or (viiivi) the adequacy of any other means the Guaranteed Party Company may have of obtaining payment related to of any of the Obligations. (b) To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law law that would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and any and all other notices of any kind (other than except for notices required to be provided to Parent or and Merger Sub pursuant to under the Merger Agreement or this Limited GuaranteeAgreement), all defenses that may be available by virtue of any valuation, stay, moratorium Law law, or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or with respect to any other person interested in of the Transactions (including any Other Guarantor)Obligations, and all suretyship defenses generally (whether at law or in equity), other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party Company of this Limited Guarantee). The Guarantor acknowledges that that, as an Affiliate of Parent and Merger Sub, it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefitsbenefits and after the advice of counsel. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 1 contract

Samples: Sponsor Guarantee (Barry R G Corp /Oh/)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement, including the Merger (the “Transactions”) for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person Person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person Person interested in the Transactions, (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or such other person (including any Other Guarantor), whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other Guarantorsuch other person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. (d) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Engadin Holdings Limited (the “Equity Commitment Letter”), against the Guarantor or any Non-Recourse Party (as defined in Section 9 hereof), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (e) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (e) Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)) hereof, the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 1 contract

Samples: Limited Guarantee (Charm Communications Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor Each Funding Party agrees that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the GuarantorFunding Parties, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or with any other person Person interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Company and Parent, Merger Sub or any such other person Person without in any way impairing or affecting the Guarantor’s Funding Parties’ obligations under this Limited GuaranteeAgreement. The Guarantor Each Funding Party agrees that the that, except as set forth in this Agreement, its obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any escrow agreement or other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations so long as any such changes do not have the effect of increasing the Cap; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge any entity or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person other Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Sub, or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantorother Funding Party), ; (vif) the existence of any claim, set-off or other right that the Guarantor which any Funding Party may have at any time against Parent or Parent, Merger Sub Sub, any other Funding Party or the Guaranteed PartyCompany or any of their respective Affiliates, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party Company may have of obtaining payment related to of any of the Obligations. ; or (bh) any lack of validity or enforceability of the Merger Agreement or any agreement or instrument relating thereto. To the fullest extent permitted by applicable Law, the Guarantor each Funding Party hereby irrevocably and expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor Each Funding Party hereby irrevocably and expressly waives promptness, diligence, notice of the acceptance of this Limited Guarantee Agreement and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other GuarantorFunding Party), and all suretyship defenses generally (other than fraud or willful misconduct by the Company or any of its Subsidiaries, defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party Company of this Limited GuaranteeAgreement, each of the foregoing defenses being retained by the Funding Parties). The Guarantor Each Funding Party acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and this Agreement and that the waivers set forth in this Limited Guarantee Agreement are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party Company hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guaranteeas defined below) not to institute, directly institute in the name of or indirectlyon behalf of the Company or any other Person, any proceeding or bring any other claim arising under, or in connection with, the Merger AgreementAgreement or the transactions contemplated thereby, against the Transactions Funding Parties, Parent or Merger Sub, except for claims (i) against the Funding Parties under this Agreement to recover from the Funding Parties for up to the amount of the Obligations (subject to each Funding Party’s Cap and the other limitations described herein), (ii) against the Funding Parties to specifically enforce the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. terms and (diii) The Guarantor against Parent and/or Merger Sub under the Merger Agreement, this Agreement, the Voting Agreement, the Commitment Letters, and any contribution agreements and rollover agreements entered into between the date hereof and the Effective Date in connection with the transactions contemplated by the Merger Agreement, in accordance with and subject to the terms and conditions thereof. For purposes of this Agreement, “Affiliate” of any Person means any Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified and, for purposes of this Agreement, includes the directors and officers of such Person when acting in their respective capacities as such. “Control” (including the terms controlling, controlled by and under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding anything to the contrary contained in this Agreement, the Company hereby agrees that to the extent Parent is relieved (other than by operation of any bankruptcy, insolvency or similar law) of all or any portion of the Obligations under the Merger Agreement, each of the Funding Parties shall be similarly relieved, to such extent, of its pro rata amount of such portion of the Obligations under this Agreement. If any amount shall be paid by the Funding Parties to Parent at any time and from time to time pursuant to this Agreement, such amount shall be received and held in trust by Parent solely for the benefit of the Company, shall be segregated from other property and funds of Parent and shall forthwith be promptly paid or delivered to the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Agreement, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Agreement thereafter arising. Each Funding Party hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations Funding Parties’ obligation under or in respect of this Limited Guarantee or any other agreement in connection therewithAgreement, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party Company against ParentParent or Merger Sub, Merger Sub or any Other Guarantorincluding, whether or not such claimwithout limitation, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Agreement shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor Funding Parties in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited GuaranteeObligations, such amount shall be received and held in trust for the benefit of the Guaranteed PartyCompany, shall be segregated from other property and funds of the Guarantor Funding Parties and shall forthwith be paid or delivered to the Guaranteed Party Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeObligations, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofObligations.

Appears in 1 contract

Samples: Parent Fee Funding Agreement (Ancestry.com Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor Each of the Guarantors agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time-to-time, without notice to or further consent of the such Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Parent and Purchaser for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any other agreement between the Guaranteed Party and Parent, Merger Sub or such other person Parent and Purchaser without in any way impairing or affecting the such Guarantor’s obligations Obligations under this Limited Guarantee, but in any case subject to the last sentence of Section 4 and to Section 7 hereof. The Each Guarantor agrees that that, except as set forth in Section 7, the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Purchaser or any other person interested in the Transactions, Guarantor; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (ivc) any change in the corporate existence, structure or ownership of Parent, Merger Sub Purchaser, any Guarantor or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligations; (including any Other Guarantor), (vd) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub Purchaser, any Guarantor or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligations; (including any Other Guarantor), (vie) the existence of any claim, set-off or other right that the which any Guarantor may have at any time against Parent Parent, Purchaser, any Guarantor or Merger Sub any Affiliate of Parent, Purchaser or the Guaranteed Partyany Guarantor, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiif) the adequacy of any other means the Guaranteed Party may have of obtaining payment related of any of the Obligations; (g) any change in the applicable laws in any jurisdiction; (h) the addition, substitution or release of any Person now or hereafter liable with respect to the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any Guarantors); or (i) any other act or omission that may or might in any manner or to any extent vary the risk of the Guarantors or otherwise operate as a discharge of the Guarantors as a matter of law or equity (other than payment of the Obligations. (b) ). To the fullest extent permitted by Lawlaw, the each Guarantor hereby expressly and unconditionally waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Each Guarantor expressly and unconditionally waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to be provided to Parent or Merger Sub pursuant to and Purchaser and Shearman & Sterling LLP in accordance with Section 8.9 of the Merger Agreement or this Limited Guaranteeand Section 10 hereof), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor)Purchaser, and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Subsidiaries, defenses to the payment of the Obligations that are available to Parent or Merger Sub Purchaser under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits, reasonable and not contrary to public policy or Law. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 1 contract

Samples: Limited Guarantee (Francisco Partners Iv, L.P.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees Guarantors agree that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the any Guarantor, extend the time of payment of any portion of the ObligationsObligation, and may also make enter into any agreement with Parent, Parent and/or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof Merger Agreement or of any agreement between the Guaranteed Party and ParentParty, Parent and/or Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty, in each case, subject to the limitations contained herein. The Guarantor agrees Guarantors agree that the obligations of Guarantor the Guarantors hereunder are absolute, unconditional and irrevocable, subject to the limitations contained in this Limited Guaranty, and shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor the Guarantors or any other person interested in Person with respect to the Transactions, Obligation; (ii) any change in the time, place or manner of payment of any portion of the Obligations Obligation or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each casethereof, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal extent Parent or equitable discharge or release (in the case of Merger Sub has a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses defense to the payment of the Obligations that would be available to Obligation under such rescission, waiver, compromise, consolidation or other amendment or modification; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent under or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement) Agreement or any of their respective assets or any person other Person now or hereafter liable with respect to the Obligation; (iv) the adequacy of any portion other means the Guaranteed Party may have of obtaining payment of the Obligations or otherwise interested in the Transactions Obligation; (including any Other Guarantor), (ivv) any change in the corporate existence, structure or ownership of Parent, Merger Sub Sub, any Guarantor, or any other person Person interested in the transactions contemplated by the Merger Agreement; or (vi) the addition, substitution or release of any Person now or hereafter liable with respect to any portion of the Obligations Obligation or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) . To the fullest extent permitted by applicable Law, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Each Guarantor hereby expressly waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the ObligationsObligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations Obligation incurred and all other notices of any kind (other than except for notices to be provided pursuant to this Limited Guaranty or to Parent or Merger Sub pursuant to and their counsel in accordance with the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar applicable Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (generally, other than defenses to the payment of the Obligations that are available to any Guarantor, Parent or Merger Sub Sub, as applicable, (x) under the Merger Agreement or Agreement, (y) in respect of a breach by the Guaranteed Party of this Limited Guarantee)Guaranty and (z) in respect of fraud or willful breach by the Guaranteed Party or any of its Affiliates or Subsidiaries in connection with the Merger Agreement, this Limited Guaranty or the transactions contemplated hereby or thereby. The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits.. Notwithstanding anything to the contrary contained in this Limited Guaranty, the Guaranteed Party hereby agrees that to the extent that Parent and Merger Sub are relieved of any portion of the Obligation under the Merger Agreement by satisfaction or waiver thereof on the terms and subject to the conditions set forth in the Merger Agreement, the Guarantors shall be similarly relieved of such Obligation to such extent under this Limited Guaranty. Notwithstanding anything to the contrary contained herein, any payment made by or on behalf of Parent or Merger Sub to the Guaranteed Party with respect to an Obligation shall reduce the total Obligation of the Guarantors under this Limited Guaranty accordingly on a pro rata basis, based on the percentages set forth on Schedule A. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly institute or indirectlyassert, and shall cause its Subsidiaries Affiliates and its Affiliates and their respective directors, officers, employees, members, managers, advisors, agents or other representatives (whichcollectively, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee“Representatives”) not to institute, directly institute or indirectlyassert, any proceeding or bring any other claim arising underof any kind whatsoever in any Proceeding, whether at Law or in connection withequity, the Merger Agreementand whether sounding in contract, the Transactions tort, statute or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited otherwise (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limitedincluding, collectivelywithout limitation, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party Claim (as defined in Section 9)) arising under or in connection with this Limited Guaranty or the Merger Agreement or any other agreement or instrument delivered in connection therewith, the negotiation, execution, performance or breach hereof or thereof, or the transactions contemplated hereby or thereby against the Guarantors or any of their Non-Parties, except for claims (i) following a valid termination of the Merger Agreement in accordance with the terms thereof, by the Guaranteed Party against the any Guarantor under and pursuant to this Limited Guarantee Guaranty (subject to as limited by its terms, including, without limitation, the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described thereinprovisions of Section 1). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) by the Guaranteed Party against Parent or Merger Sub under and pursuant to the Merger Agreement or (iii) in respect of the last sentence Confidentiality Agreement solely with respect to the parties thereto (the claims referred to in the foregoing clauses (i)-(iii) of clause (d) hereofthis Section 3(b), that this Limited Guarantee is illegalcollectively, invalid or unenforceable in accordance with its termsthe “Permitted Claims”). (dc) The Except as expressly set forth herein, each Guarantor hereby unconditionally and irrevocably waives waives, and agrees not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, performance or enforcement of the a Guarantor’s obligations Obligation under or in respect of this Limited Guarantee or any other agreement in connection therewithGuaranty, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee Obligation shall have been paid to the Guaranteed Party in full in immediately available fundscash. If any amount shall be paid to the any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeObligation, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be paid or delivered by such Guarantor to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeObligation in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee Obligation thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofexisting.

Appears in 1 contract

Samples: Limited Guaranty (Keypath Education International, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent and/or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of the Limited Guarantee. The Guarantor agrees that the its obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Parent and/or Merger Sub, any Other Guarantor or any other person interested in the Transactions, ; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment to or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed PartyParty or any of their Affiliates, whether in connection with the Obligations or otherwise, ; (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to any of the Obligations. ; (bh) the lack of validity or enforceability of the Merger Agreement other than for fraud by the Guaranteed Party or any of its Affiliates; or (i) any breach of the Merger Agreement by Parent and/or Merger Sub. To the fullest extent permitted by Law, Law the Guarantor hereby expressly expressly, absolutely, irrevocably and unconditionally waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or and/or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that may be available by virtue of any valuation, stay, moratorium moratorium, Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person now or hereafter liable with respect to any of the Obligations or otherwise interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than fraud, defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party or its controlled Affiliates of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that this Limited Guarantee, including specifically the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its controlled Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with , or the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)transactions contemplated thereby, against the Guarantor or any Non-Recourse Party (as defined in Section 99 herein), except for (i) claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein), (ii) and claims against the Other Guarantors under Guarantor and/or Parent pursuant to the Other Guarantees Equity Commitment Letter (subject to the limitations described therein), and (iii) claims against Blackstone Management Partners L.L.C. and its Affiliates under the Confidentiality Agreement (the claims referred to in clauses (i), (ii) and (iii) hereof being referred to herein as the “Permitted Claims”). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its controlled Affiliates not to institute, directly or indirectly, in any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) . The Guarantor hereby expressly, absolutely, irrevocably and unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent and/or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorother Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been previously paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in cash immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other all amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)or otherwise, the Guaranteed Party hereby agrees that: that the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by such Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that (i) to the extent Parent and or Merger Sub are relieved could assert against the Guaranteed Party under the terms of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and Merger Agreement; (ii) Parent or Merger Sub or the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations as well as any defenses in respect of could assert based on fraud or willful misconduct of by the Guaranteed Party hereunder or any of its Affiliates or (iii) the Guarantor could assert based on breach by the Guaranteed Party or its controlled Affiliates of this Limited Guarantee. The Obligations, and any term hereofof them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all negotiations between Parent, Merger Sub or the Guarantor, on the one hand, and the Guaranteed Party, on the other, of the terms of the Merger Agreement, and the transactions contemplated by the Merger Agreement, shall, in each case, likewise be conclusively presumed to have been had or consummated, as the case may be, in reliance upon this Limited Guarantee.

Appears in 1 contract

Samples: Limited Guarantee (Emdeon Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Except as specifically otherwise provided in this Guarantee, the Guarantor agrees that that: (i) the Guaranteed Party may, in its sole discretion, at any time and from time to time, without further notice to or further consent of the Guarantor, extend the time of payment of any portion payment, performance or discharge of the Obligations, and may also make any agreement with Parent, Merger Sub Seller or any Other the Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parentthe Guarantor or Seller, Merger Sub or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or the validity or enforceability of this Guarantee. The Guarantor agrees that ; (ii) the Guarantor’s obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i1) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right right, remedy or remedy power against Parent, Merger Sub, any Other Guarantor or any other person interested in the Transactions, Seller; (ii2) any change in the time, place or manner of payment of any portion of the Obligations Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Purchase Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv3) any change in the corporate legal existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Seller; (including any Other Guarantor), (v4) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Seller; (including any Other Guarantor), (vi5) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent Seller or Merger Sub or the Guaranteed Partyany of its Affiliates, whether in connection with the Obligations or otherwise, ; or (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii6) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to payment, performance or discharge in respect of the Obligations. (biii) To to the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The ; and (iv) the Guarantor waives in advance promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)kind, all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar applicable Law now or hereafter in effect, effect or any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), Seller and all suretyship defenses generally (other than the defenses to the payment of the Obligations that are available to Parent or Merger Sub Seller under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteePurchase Agreement). . (b) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Purchase Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, indirectly institute any proceeding asserting or assert as a defense in any proceeding, subject and shall cause its Affiliates not to clause directly or indirectly institute any proceeding asserting or assert as a defense in any proceeding, (i) that the Guaranteed Party has an adequate remedy at Law or (ii) of the last sentence of clause (d) hereofillegality, that this Limited Guarantee is illegal, invalid invalidity or unenforceable unenforceability in accordance with its termsterms of this Guarantee. (d) The Unless and until all Obligations have been satisfied in full, to the fullest extent permitted by applicable Law, the Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub Seller with respect to the Obligations that arise from the existence, payment, performance, discharge or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other GuarantorSeller with respect to the Obligations, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including the right to take or receive from Parent, Merger Sub or any Other GuarantorSeller with respect to the Obligations, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all the Guarantor shall not exercise any such rights. (e) The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its Affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the Purchase Agreement or the transactions contemplated thereby against the Guarantor or any former, current or future equity holder, controlling person, director, officer, employee, agent, member, manager, general or limited partner, permitted assignee or Affiliate of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to Guarantor (each, a “Non-Recourse Party” and, collectively the Guarantor in violation “Non-Recourse Parties”), whether by or through attempted piercing of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guaranteecorporate veil, such amount shall be received and held in trust for the benefit by or through a claim by or on behalf of the Guaranteed Party, shall be segregated from other property and funds of Party against the Guarantor or any Non-Recourse Party by any legal or equitable proceeding, by virtue of any statute, regulation or other applicable Law, or otherwise, except for (i) the Guaranteed Party’s rights to recover from the Guarantor (but not any other Person) under and shall forthwith be paid or delivered to the extent provided in this Guarantee and subject to the limitations described herein (“Retained Guarantee Claims”) and (ii) claims that the Guaranteed Party in has against Seller under the same form as so received Purchase Agreement (with any necessary endorsement or assignment) to be credited and applied subject to the Obligations terms and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for conditions thereof) (“Retained Purchase Agreement Claims”). Recourse against the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations Guarantor with respect to the Parent Termination FeeRetained Guarantee Claims, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement limitations and conditions set forth herein, and against Seller with respect to the Obligations as well as any defenses in respect of fraud or willful misconduct Retained Purchase Agreement Claims shall be the sole and exclusive remedies of the Guaranteed Party hereunder or and all of its Affiliates against the Guarantor and any breach by the Guaranteed Non-Recourse Party in respect of any term hereofliabilities or obligations arising under, or in connection with, this Guarantee and the Purchase Agreement or the guarantee contemplated hereby or thereby or in respect of any representations made or alleged to be made in connection herewith or therewith.

Appears in 1 contract

Samples: Stock Purchase Agreement (Enstar Group LTD)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and also may also make any agreement with Parent, Merger Sub one or any Other Guarantor or any other person interested in both of the Transactions Buyer Parties for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Company, on the one hand, and Parentone or both of the Buyer Parties, Merger Sub or such on the other person hand, without in any way impairing or affecting the Guarantor’s obligations under this Limited GuaranteeGuaranty. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor one or any other person interested in both of the Transactions, Buyer Parties; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any Person interested in the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub one or both of the Buyer Parties or any other person now or hereafter Person liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligations; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parentone or both of the Buyer Parties, Merger Sub or any other person now or hereafter Person liable with respect to any portion of the Obligations Obligations; (f) subject to the last sentence of Section 2(a) hereof, any lack of validity or otherwise interested in enforceability of the Transactions Merger Agreement or any agreement or instrument relating thereto; (including any Other Guarantor), (vig) the existence of any claim, set-off or other right that rights which the Guarantor may have at any time against Parent one or Merger Sub both of the Buyer Parties or the Guaranteed PartyCompany, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiih) the adequacy of any other means the Guaranteed Party Company may have of obtaining payment related to of any of the Obligations. (b) . To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub pursuant to be provided in accordance with Section 10.02 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent one or Merger Sub both of the Buyer Parties, or any other person interested in Person liable with respect to any of the Transactions (including any Other Guarantor)Obligations, and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party Company of this Limited GuaranteeGuaranty). The Guarantor hereby unconditionally and irrevocably agrees that it shall not institute, and shall cause its Affiliates not to institute, any proceeding asserting that this Limited Guaranty is illegal, invalid or unenforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general application relating to or affecting creditors’ rights, and general equitable principles (whether considered in a proceeding in equity or at law). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefitsbenefits and after the advice of counsel. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 1 contract

Samples: Limited Guaranty (PRA International)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or with any other Person (including any Other Guarantor or any other person Guarantor) interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or any such other person Person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactionstransactions contemplated by the Merger Agreement (including any Other Guarantor, subject to the provisions of Section 1(b)); (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof Agreement, or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of any Person interested in the Guarantor with respect transactions contemplated by the Merger Agreement (including any Other Guarantor) to the Obligations as a result of payment in full of the Obligations in accordance with their termsor from this Limited Guarantee, a discharge or release of Parent with respect to the Obligations under any other guarantees, the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now related agreement or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions document; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Parent, Merger Sub pursuant to and Shearman & Sterling LLP in accordance with Section 10.6 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Affiliates (provided, that the Guaranteed Party acknowledges and agrees that neither Parent nor Merger Sub is an Affiliate of the Guaranteed Party), defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its respective Affiliates not to institute, directly or indirectly, any proceedings asserting (and shall not so assert and shall causes its respective Affiliates not to assert in any proceeding asserting not instituted by the Guarantor or assert as a defense in any proceeding, subject to clause (iiits Affiliates) of the last sentence of clause (d) hereof, that this Limited Guarantee (or any of the provisions hereof) is illegal, invalid or unenforceable in accordance with its terms. , subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and general equitable principles (d) whether considered in a proceeding in equity or at law). The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Parent, Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor) that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee and the Other Guarantees (including any amount payable pursuant to Section 14) shall have been irrevocably and indefeasibly paid in full in immediately available fundscash (such payment, the “Final Payment”). If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited GuaranteeGuarantee and the Other Guarantees (including any amount payable pursuant to Section 14), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts or any amount payable under this Limited Guaranteepursuant to Section 14, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts any amount payable under this Limited Guarantee pursuant to Section 14 thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any of their payment obligations under the Merger Agreement (other than in connection with respect to the Parent Termination Feeany bankruptcy or liquidation proceedings), the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee but only to the same extent Parent and (ii) Merger Sub are so relieved. Promptly upon the Guarantor’s making of the Final Payment, if requested by Guarantor, the Guaranteed Party shall assign to the Guarantor 44.481% of its rights to payment and the right to pursue actions under the Other Guarantees, other than the Other Guarantee executed by the Other Backstop Guarantor, and immediately upon making the Final Payment, the Guarantor shall have all defenses be subrogated to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub Guaranteed Party’s rights under the Merger Agreement with respect to Other Guarantees, excluding the Obligations as well as any defenses in respect of fraud or willful misconduct of the Guaranteed Party hereunder or any breach Other Guarantee executed by the Guaranteed Party of any term hereofOther Backstop Guarantor.

Appears in 1 contract

Samples: Limited Guarantee (Jasmine Holdco LLC)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, Company may from time to time and at any time and from time to timeon or before the Effective Time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in Parent and the Transactions Purchaser for the extension, renewal, payment, compromise, discharge extension, discharge, renewal, or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Company, Parent and Parent, Merger Sub or such other person the Purchaser without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the its obligations of Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the existence of any claim, set-off or other right which the Guarantor may have at any time against Parent or the Purchaser, whether in connection with the Obligations or otherwise; (b) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or the Purchaser; (c) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against ParentParent or the Purchaser; (d) any change in the corporate existence, Merger Sub, any Other Guarantor structure or ownership of Parent or the Purchaser; (e) the adequacy of any other person interested in means the Transactions, Company may have of obtaining payment of any of the Obligations; or (iif) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their its terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vi) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to be provided to Parent and the Purchaser and their counsel in accordance with Section 9.2 of the Merger Agreement), any right to require the marshalling of assets of Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee)Purchaser, all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), effect and all suretyship defenses generally (other than fraud or willful misconduct by the Company, defenses to the payment of the Obligations that are available to Parent or Merger Sub the Purchaser under the Merger Agreement or a breach by the Guaranteed Party Company of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives agrees, unless and agrees until all of the Obligations shall have been performed in full, not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub the Purchaser that arise from the existence, payment, performance, performance or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithagreement, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party Company against Parent, Merger Sub Parent or any Other Guarantorthe Purchaser, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub Parent or any Other Guarantorthe Purchaser, directly or indirectly, in cash or other property or by set-off setoff or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment performance in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeObligations, such amount shall be received and held in trust for the benefit of the Guaranteed PartyCompany, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured. The Company is a party to and intended beneficiary of this Guarantee. Except as provided in the preceding sentence, this Guarantee is solely for the benefit of the Company and is not intended to confer any benefits on, or create any rights in favor of, any other Person or entity. This Guarantee may not be amended or waived in any respect without the Guarantor’s and the Company’s prior written consent. The Guarantor hereby covenants and agrees that it shall not institute, and shall cause its respective affiliates not to be held as collateral for institute, any proceedings asserting and shall not in any case assert that this Guarantee is illegal, invalid or unenforceable in accordance with its terms, subject to the Obligations effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other amounts payable under this Limited Guarantee thereafter arisingsimilar laws affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding in equity or at law). Notwithstanding anything Anything to the contrary contained in this Limited Guarantee but subject Section 3(a)notwithstanding, the Guaranteed Party Company hereby agrees that: (i) that to the extent Parent and Merger Sub the Purchaser are relieved of any of their obligations to pay monetary damages, if any, under the Merger Agreement in accordance with respect to the Parent Termination Feeterms thereof, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 1 contract

Samples: Guarantee (Cyanco Holding Corp.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Merger Sub or with any other Person (including any Other Guarantor or any other person Guarantor) interested in the Transactions transactions contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or any such other person Person without in any way impairing or affecting the Guarantor’s 's obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement (iiincluding any Other Guarantor); (b) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ivd) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), ; (vif) the existence of any claim, set-off or other right that which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiig) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or be provided to Parent, Merger Sub pursuant to and Simpson Thacher & Bartlett LLP in accordance with Section 8.7 of the Merger Agreement or this Limited GuaranteeXxxxxx Xxxxxxxnt), all defenses that xxx xxfenses which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of Parent or Parent, Merger Sub or any other person Person interested in the Transactions transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Subsidiaries, defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) . The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and Affiliates that are under its Affiliates control (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee"Controlled Affiliates") not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions Agreement or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”)transactions contemplated thereby, against any Guarantor or any of its former, current or future directors, officers, agents, Affiliates (other than Parent or Merger Sub) or employees, or against any of the former, current or future general or limited partners, members, managers or stockholders of the Guarantor or any Non-Recourse Party Affiliate thereof (as defined in Section 9other than Parent or Merger Sub) or against any former, current or future directors, officers, agents, Affiliates, general or limited partners, members, managers or stockholders of any of the foregoing (other than Parent or Merger Sub), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under their written limited guarantees, and the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its respective Affiliates not to institute, directly or indirectly, any proceeding proceedings asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. , subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally, and general equitable principles (d) whether considered in a proceeding in equity or at law). The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Parent, Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor) that arise from the existence, payment, performance, or enforcement of the Guarantor’s 's obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guarantee, the Guaranteed Party hereby agrees that: (i) that to the extent Parent and Merger Sub are relieved of any in full of their obligations with respect to under the Parent Termination Feelast sentence of Section 5.10, Section 7.2(b) and Section 7.2(d) of the Merger Agreement, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofGuarantee.

Appears in 1 contract

Samples: Limited Guarantee (Crane James R)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the such Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make enter into any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the each Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Subject to termination of this Limited Guarantee as provided herein, each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by, and each Guarantor irrevocably waives any defense (iexcept to the extent Parent or Merger Sub have such defense under the Merger Agreement or to the extent the Guaranteed Party has breached the terms of this Limited Guarantee, but excluding defenses arising from bankruptcy or insolvency of Parent and other defenses waived in this Limited Guarantee) based upon or arising out of: (a) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sub or any other person interested in the Transactions, such Guarantor; (iib) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Guaranteed Obligations; (in each case, except c) any change in the event of any amendment to the circumstances under which the Obligations are payable)legal existence, (iii) the addition, substitution, any legal structure or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release ownership of Parent with respect to the Obligations under the or Merger Agreement, Sub or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person other Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (vd) any insolvency, bankruptcy, reorganization or other similar proceeding affecting (or any consequences or effects thereof) instituted by or against Parent, Merger Sub or any other person Person now or hereafter liable with respect to the Guaranteed Obligations; (e) the adequacy or potential adequacy of any portion alternative means the Guaranteed Party may have of obtaining payment related to the Obligations or otherwise interested in the Transactions Guaranteed Obligations; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that the which such Guarantor may have at any time against Parent or Parent, Merger Sub or any of their respective Affiliates (or the Guaranteed Partyexistence of any claim, set-off or other right that Parent, Merger Sub or any of their respective Affiliates may have at any time against any Guarantor), whether in connection with such Guarantor’s Obligation or otherwise; (g) the addition, substitution or release of any entity or other Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise, otherwise interested in the transactions contemplated by the Merger Agreement (viiincluding any other Guarantor) or (h) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the a Guarantor as a matter of law applicable Law or equity (other than a discharge of the a Guarantor with respect to the Guaranteed Obligations as a result of indefeasible payment in full of the Guaranteed Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, terms or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent or Merger Sub under the Merger Agreement) Agreement or (viii) the adequacy as a result of any other means a breach by the Guaranteed Party may have of obtaining payment related to the Obligations. (b) this Limited Guarantee, but excluding defenses arising from bankruptcy or insolvency of Parent and other defenses waived in this Limited Guarantee). To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The each Guarantor waives (i) promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, ; (ii) presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices required to be delivered to Parent or Merger Sub by the Guaranteed Party pursuant to the Merger Agreement or this Limited GuaranteeAgreement), ; (iii) all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, ; or (iv) any right to require the marshalling marshaling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses Person now or hereafter liable with respect to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)Obligations. The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, performance or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and such Guarantor shall not exercise any such rights in each case unless and until all the Guaranteed Obligations (subject to such Guarantor’s Pro Rata Percentage of the Obligations and all other amounts payable under this Limited Guarantee Cap) shall have been indefeasibly paid in full in immediately available fundsfull. If any amount shall be paid to the such Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of such Guarantor’s Pro Rata Percentage of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee(subject to such Guarantor’s Pro Rata Percentage of the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to payment of such Guarantor’s Pro Rata Percentage of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or until they are paid in full (subject to be held as collateral for such Guarantor’s Pro Rata Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arisingCap). Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)or otherwise, the Guaranteed Party hereby agrees that: (i) , in addition to any defenses of each Guarantor on the extent Parent and Merger Sub are relieved basis of any a breach of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantee, each Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to such Guarantor’s Pro Rata Percentage of the Cap to the extent applicableCap) that would be available to Parent and/or Parent, Merger Sub under or any assignee in respect of the Merger Agreement with respect to the 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 hereofObligations.

Appears in 1 contract

Samples: Limited Guarantee (Powerschool Holdings, Inc.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the such Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with ParentParent or Merger Sub, Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any other agreement between the Guaranteed Party and Parent, Merger Sub or such other person Person without in any way impairing or affecting the such Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (i) the failure or delay delay, subject to Section 7, on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescissionrecession, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), thereof; (iii) the any addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the such Guarantor with respect to the Guaranteed Obligations as a result of payment in full of the Guaranteed Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement; (vi) except as expressly provided herein, the existence of any claim, set-off or other right that the which such Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, otherwise (other than as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement); (vii) any other act or omission that may in any manner or to any extent vary the risk of of, or to the to, such Guarantor or otherwise operate as a discharge of the such Guarantor as a matter of law or equity (other than a discharge of the such Guarantor with respect to the Guaranteed Obligations as a result of payment in full of the Guaranteed Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement) or ); (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. Guaranteed Obligations or (bix) To the fullest extent permitted by Lawvalue, genuineness, validity, regularity, illegality or enforceability of the Merger Agreement. Each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to the Merger Agreement or this Limited Guarantee), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, effect or any right to require the marshalling of assets of Parent or Merger Sub or any other person Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor), transactions contemplated by the Merger Agreement and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject to Section 3(a3(a)(v), the Guaranteed Party hereby agrees that: (i) to that the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor Guarantors shall have all defenses to the payment of its their obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicableCap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations payment of the Guaranteed Obligations, as well as any defenses in respect of any fraud or willful misconduct knowing and intentional breach of the Guaranteed Party hereunder or its Affiliates, including, without limitation, to the extent Parent and Merger Sub are relieved of all or any breach portion of their respective payment obligations under the Merger Agreement, by satisfaction thereof or pursuant to any other agreement with the Guaranteed Party, in which such case the Guarantors shall be similarly relieved, only to such corresponding extent, of their obligations under this Limited Guarantee. (c) Each and every right, remedy and power hereby granted to the Guaranteed Party or allowed it by Law shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed Party at any time or from time to time. The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Party’s rights against, Parent or Merger Sub for any term hereofGuaranteed Obligations prior to proceeding against any Guarantor hereunder, and the failure or delay by the Guaranteed Party to pursue or enforce any rights or remedies against, or assert any claim or demand against, Parent or Merger Sub shall not relieve any Guarantor of its 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.

Appears in 1 contract

Samples: Limited Guarantee (Xplane Ltd.)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the such Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make any agreement with ParentHoldings, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions Sub, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person without in any way impairing or affecting the such Guarantor’s obligations under this Limited GuaranteeGuaranty or affecting the validity or enforceability of this Limited Guaranty. The Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by by: (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against ParentHoldings, Parent or Merger Sub, any Other Guarantor or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (iib) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed by Holdings, Parent, Merger Sub and/or the Guaranteed Party in connection with any portion of the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under transactions contemplated by the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions ; (including any Other Guarantor), (ivc) any change in the corporate existence, structure or ownership of ParentHoldings, Parent or Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise Person interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (vd) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Holdings, Parent, Merger Sub or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Merger Agreement (including any Other other Guarantor), ; (vie) the existence of any claim, set-off or other right that the which such Guarantor may have at any time against Holdings, Parent or Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Guaranteed Obligations that would be are available to Holdings, Parent or Merger Sub under the Merger Agreement) ); or (viiif) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations. (b) . To the fullest extent permitted by Lawlaw, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed Party. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices to Holdings, Parent or Merger Sub pursuant to the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, effect or any right to require the marshalling of assets of Holdings, Parent or Merger Sub or any other person Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally generally, including, without limitation, any event, condition or circumstance that might be construed to constitute, an equitable or legal discharge of such Guarantor’s obligations hereunder (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited GuaranteeGuaranty by, or fraud of, the Guaranteed Party). The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee Guaranty are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Holdings, Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuaranty (subject to such Guarantor’s Cap), including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against ParentHoldings, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including including, without limitation, the right to take or receive from ParentHoldings, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and no Guarantor shall exercise any such rights unless and until all of the Obligations and all other amounts payable by such Guarantor under this Limited Guarantee Guaranty (which shall be subject to such Guarantor’s Cap) shall have been indefeasibly paid in full in immediately available funds. If any amount shall be paid to the any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited GuaranteeGuaranty (which shall be subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable by such Guarantor under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arisingGuaranty. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)Guaranty or otherwise, the Guaranteed Party hereby agrees that: that (ia) to the extent that Holdings, Parent and and/or Merger Sub are is relieved of any of their obligations with respect to the Parent Termination FeeGuaranteed Obligations under the Merger Agreement (other than by bankruptcy, the insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally, or general equitable principles (whether considered in a proceeding in equity or at law)), each Guarantor shall be similarly relieved of its Guaranteed Percentage of such corresponding payment obligations under this Limited Guarantee Guaranty, and (iib) the each Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee Guaranty (which in any event shall be subject to the Cap to the extent applicablesuch Guarantor’s Cap) that would be available to Holdings, Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations Guaranteed Obligations, as well as any defenses in respect of any fraud or willful misconduct of the Guaranteed Party hereunder or any breach by its Affiliates (other than defenses arising from the Guaranteed Party bankruptcy or insolvency of any term hereofHoldings, Parent or Merger Sub).

Appears in 1 contract

Samples: Limited Guaranty (ShangPharma Corp)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees that the Guaranteed Party may, in its sole discretion, Company may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any portion of the Obligations, and may also make any agreement with Parent, Parent or Merger Sub or any Other Guarantor or any other person interested in the Transactions for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party Company and Parent, Parent or Merger Sub or any such other person Person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (ia) the failure or delay on the part of the Guaranteed Party Company to assert any claim or demand or to enforce any right or remedy against Parent, Parent or Merger Sub, any Other Guarantor Sub or any other entity or person interested in liable with respect to any of the Transactions, Obligations; (iib) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations Obligations; (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iiic) the addition, substitution, any legal or equitable discharge or release (in the case of a discharge or release, other than a discharge substitution or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge any other entity or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligations; (including any Other Guarantor), (ivd) any change in the corporate existence, structure or ownership of Parent, Parent or Merger Sub or any other entity or person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligations; (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization reorganization, or other similar proceeding affecting Parent, Parent or Merger Sub or any other entity or person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions Obligations; (including any Other Guarantor), (vif) the existence of any claim, set-off or other right that rights which the Guarantor may have at any time against Parent or Parent, Merger Sub or the Guaranteed PartyCompany, whether in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) ; or (viiig) the adequacy of any other means the Guaranteed Party Company may have of obtaining payment related to of the Obligations. (b) . To the fullest extent permitted by Lawlaw, the Guarantor hereby expressly waives WAIVES any and all rights or defenses arising by reason of any Law that law which would otherwise require any election of remedies by the Guaranteed PartyCompany. The Guarantor waives WAIVES promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to be provided to Parent or and Merger Sub pursuant to in accordance with Section 9.02 of the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law law now or hereafter in effect, any right to require the marshalling of assets of the Parent or Merger Sub or any other entity or other person interested in liable with respect to any of the Transactions (including any Other Guarantor)Obligations, and all suretyship defenses generally (other than fraud by the Company or any of its Subsidiaries or defenses to the payment of the Obligations that are available to Parent or Merger Sub under the terms of the Merger Agreement or a breach by the Guaranteed Party Company of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party . Notwithstanding anything to the contrary contained in this Guarantee, the Company hereby covenants and agrees that it shall not institute, directly to the extent Parent and Merger Sub are relieved of their obligations with respect to the Parent Liquidated Damage Amount or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance Termination Expenses pursuant to the terms of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor shall be similarly relieved of its Obligations under this Limited Guarantee (subject but only to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein)same extent. The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Guarantor hereby unconditionally and irrevocably waives WAIVES, and agrees not to exercise exercise, any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s 's obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party Company against Parent, Parent or Merger Sub or any Other GuarantorSub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Parent or Merger Sub or any Other GuarantorSub, directly or indirectly, in cash or other property or by set-off setoff or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other any amounts payable under pursuant to Section 11 of this Limited Guarantee shall have been paid in full in immediately available fundscash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations and all other any amounts payable under pursuant to Section 11 of this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed PartyCompany, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other any amounts payable under pursuant to Section 11 of this Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under pursuant to Section 11 of this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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.

Appears in 1 contract

Samples: Guarantee (Synagro Technologies Inc)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Guarantor agrees Sponsors agree that the Guaranteed Party may, in its sole discretion, may at any time and from time to time, without notice to or further consent of the GuarantorSponsors, extend the time of payment of any portion of the Obligations, and may also make enter into any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Parent for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof Merger Agreement or of any other agreement between the Guaranteed Party and Parent, Merger Sub or such other person Parent without in any way impairing or affecting the Guarantor’s obligations Sponsors’ Obligations under this Limited GuaranteeGuaranty. The Guarantor agrees Sponsors irrevocably and unconditionally agree that the obligations Obligations of Guarantor the Sponsors hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, any Other Guarantor Sponsor or any other person Person interested in the Transactions, transactions contemplated by the Merger Agreement; (ii) any change in the time, place or manner of payment of any portion of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations (in each casethereof, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) the addition, substitution, any legal or equitable discharge or release (in the case of extent Parent has a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses defense to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person now such rescission, waiver, compromise, consolidation or hereafter liable with respect to any portion of the Obligations other amendment or otherwise interested in the Transactions modification; (including any Other Guarantor), (iviii) any change in the corporate legal existence, structure structure, or ownership of Parentof, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now Person (other than the Guaranteed Party or hereafter liable with respect to any portion of the Obligations or otherwise its Subsidiaries) interested in the Transactions transactions contemplated by the Merger Agreement; (including any Other Guarantor), (viiv) the existence of any claim, set-off or other right that the Guarantor which a Sponsor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether relating to, arising out of or in connection with the Obligations or otherwise, (vii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than a discharge those described in the last sentence of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or Section 2); (viiiv) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to repayment of any of the Obligations.; or (vi) any absence of any notice, or knowledge by, the Sponsors of the existence or occurrence of any of the matters or events set forth in the foregoing subsections (i) through (bv) To the fullest extent permitted by applicable Law, the Guarantor Sponsors hereby expressly waives waive any and all rights or defenses arising by reason of any applicable Law that which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives Sponsors waive promptness, diligence, notice of the acceptance of this Limited Guarantee Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Obligations incurred and all other notices of any kind (other than except for notices to Parent or Merger Sub be provided pursuant to this Guaranty or to Parent and its counsel in accordance with the Merger Agreement or this Limited GuaranteeAgreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of the Parent or Merger Sub or any other person Person interested in the Transactions (including any Other Guarantor)transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses fraud or willful misconduct by the Guaranteed Party or any of its Affiliates). Notwithstanding anything to the payment contrary contained in this Guaranty or the Merger Agreement, the Guaranteed Party hereby covenants and agrees that (i) to the extent Parent is relieved of all or any portion of the Obligations that are available to (other than due to, in connection with, or as a result of, the insolvency or bankruptcy of Parent or Merger Sub Sub), the Sponsors shall be similarly relieved of the Obligations under this Guaranty, (ii) the Sponsors may assert, as a defense to payment or performance by the Sponsors under this Guaranty, or as an affirmative claim against the Guaranteed Party or its Affiliates, or any Person claiming by, through or on behalf of any of them, any rights, remedies, set offs and defenses that Parent could assert pursuant to the terms of the Merger Agreement or pursuant to any applicable Law in connection therewith (other than any such rights, remedies set offs and defenses arising out of, due to, or as a breach result of, the insolvency or bankruptcy of Parent or Merger Sub), and (iii) any payment made by or on behalf of Parent to the Guaranteed Party in full or partial satisfaction of an Obligation shall reduce the total Obligations of the Sponsors under this Limited Guarantee)Guaranty accordingly on a pro rata basis, based upon the percentages set forth on Schedule A hereto. The Guarantor Each Sponsor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Merger Agreement and that its obligations under this Guaranty (including without limitation the waivers set forth in this Limited Guarantee Guaranty) are knowingly made in contemplation of such benefits. (cb) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly institute or indirectlyassert, and shall cause its Subsidiaries equityholders, their respective Affiliates and its Affiliates (whichany Person claiming by, for the avoidance through or on behalf of doubt, does not include the Founder Parties for purposes any of this Limited Guarantee) them not to institute, directly institute or indirectlyassert, any proceeding Proceeding or bring any other claim arising under, or Claim (as defined in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), Section 9) of any kind whatsoever against the Guarantor Sponsors or any Non-Recourse Party Parties (as defined in Section 9), except for claims claims: (i) against the Guarantor Sponsors under and pursuant to this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not instituteGuaranty, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) to the extent permitted by Section 5 of the last sentence of clause Equity Commitment Letter with the Sponsors and (diii) hereofagainst Parent under and pursuant to the Merger Agreement (collectively, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms“Retained Claims”). (dc) The Guarantor Except as explicitly set forth herein , each Sponsor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or any other Person interested in the transactions contemplated by the Merger Sub Agreement that arise from the existence, payment, performance, performance or enforcement of the Guarantora Sponsor’s obligations Obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuaranty, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub Parent or any Other Guarantorsuch other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub Parent or any Other Guarantorsuch other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all such Sponsor’s Maximum Sponsor Percentage of the Obligations and all other amounts payable under this Limited Guarantee (subject to the Cap) shall have been paid in full in immediately available fundscash; provided that each Sponsor shall have the right to cause any other Person to satisfy its Obligations to the Guaranteed Party hereunder. If any amount shall be paid to the Guarantor any Sponsor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Obligations Obligations, an amount equal to the lesser of (i) the amount paid to such Sponsor in violation of the immediately preceding sentence, and (ii) all other amounts payable under this Limited GuaranteeGuaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor such Sponsor and shall forthwith be paid or delivered by such Sponsor to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited GuaranteeObligations, whether matured or unmatured, or to be held as collateral for the any Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap to the extent applicable) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the 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 hereofexisting.

Appears in 1 contract

Samples: Limited Guaranty (Agiliti, Inc. \De)

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. (a) The Each Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the such Guarantor, extend the time of payment of any portion of the Guaranteed Obligations, and may also make enter into any agreement with Parent, Merger Sub or any Other Guarantor or any other person interested in the Transactions Purchaser for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent, Merger Sub or such other person Purchaser without in any way impairing or affecting the such Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The Each Guarantor further agrees that the obligations of such Guarantor hereunder shall, to the fullest extent permitted by Law, be absolute, irrevocable, unaffected by, and unconditional, irrespective of (and shall not be released or discharged, in whole or in part, or otherwise affected by by): (ia) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against ParentPurchaser, Merger Sub, any Other such Guarantor or any other person Person interested in the Transactionstransactions contemplated in the Arrangement Agreement (other than any other Guarantor as required by Section 1, but including any other Person primarily or secondarily liable with respect to any Guaranteed Obligation); (iib) any change in the time, place or manner of payment of any portion of the Obligations Guaranteed Obligations, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Arrangement Agreement made in accordance with the terms thereof or any other agreement evidencing, securing executed by Purchaser or otherwise executed the Guaranteed Party in connection with any portion of the Obligations Guaranteed Obligations; (in each case, except c) any change in the event corporate or legal existence, structure or ownership of Purchaser or any amendment other Person now or hereafter liable with respect to the circumstances under which Guaranteed Obligations or interested in the Obligations are payabletransactions contemplated by the Arrangement Agreement (including any other Guarantor), ; (iiid) the addition, substitution, any legal or equitable discharge or release of such Guarantor with respect to the Guaranteed Obligations (in the case of a discharge or release, other than a discharge or release of the such Guarantor with respect to the its Guaranteed Obligations as a result of payment in full of the Guaranteed Obligations or termination of this Limited Guarantee, in each case, in accordance with their terms, a discharge the terms hereunder) or release of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) of any person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Arrangement Agreement (including any Other other Guarantor), ; (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the Transactions (including any Other Guarantor), (ve) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub instituted by or against Purchaser or any other person Person now or hereafter liable with respect to any portion of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Arrangement Agreement (including any Other other Guarantor), ) or affecting any of their respective assets; (vif) the adequacy or potential adequacy of any alternative means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations; (g) the existence of any claim, set-off or other right that the such Guarantor may have at any time against Parent or Merger Sub or Purchaser, the Guaranteed PartyParty or any of their Affiliates, whether in connection with the Guaranteed Obligations or otherwise, ; (viih) any change in applicable Law of any jurisdiction; (i) any sovereign immunity; (j) any other act or omission that may or might in any manner or to any extent vary the risk of or to the such Guarantor or otherwise that might operate as a legal or equitable discharge of a guarantor or surety; or (k) the Guarantor as a matter of law value, genuineness, regularity, illegality or equity (other than a discharge enforceability of the Transaction Agreements. Each Guarantor with respect hereby acknowledges and agrees that the guarantee provided in this Limited Guarantee is not a guarantee attached to specific duties of such Guarantor towards the Obligations as a result of payment in full of the Obligations in accordance with their terms, a discharge of Parent with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent under the Merger Agreement) or (viii) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations. (b) Purchaser. To the fullest extent permitted by Law, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that which would otherwise require any election of remedies by the Guaranteed Party. The To the fullest extent permitted by Law, each Guarantor further expressly waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any portion of the Guaranteed Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub Purchaser pursuant to the Merger Agreement or this Limited GuaranteeArrangement Agreement), all defenses that which may be available by virtue of any valuation, stay, moratorium Law or other similar applicable Law now or hereafter in effect, any right to require the marshalling marshaling of assets of Parent or Merger Sub Purchaser or any other person Person now or hereafter liable with respect to any of the Guaranteed Obligations or otherwise interested in the Transactions transactions contemplated by the Arrangement Agreement (including any Other other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee)generally. The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions transactions contemplated by the Arrangement Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. (c) The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates (which, for the avoidance of doubt, does not include the Founder Parties for purposes of this Limited Guarantee) not to institute, directly or indirectly, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement, the Transactions or the Equity Commitment Letter between the Guarantor and Goliath Group Holdings Limited (the “Equity Commitment Letter” and together with the other equity commitment letters between each Other Guarantor and Goliath Group Holdings Limited, collectively, the “Equity Commitment Letters”), against the Guarantor or any Non-Recourse Party (as defined in Section 9), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations described herein) and against the Other Guarantors under the Other Guarantees (subject to the limitations described therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. (d) The Each Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub Purchaser that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewithGuarantee, including including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, Purchaser whether or not such claim, remedy or right arises in equity or under contract, statute or common Lawlaw, including including, without limitation, the right to take or receive from Parent, Merger Sub or any Other GuarantorPurchaser, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and such Guarantor shall not exercise any such rights in each case unless and until all of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee (which shall be subject to the Caps) shall have been indefeasibly paid in full in immediately available fundsfull. If any amount shall be paid to the Guarantor Guarantors in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee(which shall be subject to the Caps), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to payment of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or until they are paid in full (subject to be held as collateral for the Obligations or other amounts payable under this Limited Guarantee thereafter arisingCaps). Notwithstanding anything to the contrary contained in this Limited Guarantee but subject Section 3(a)or otherwise, the Guaranteed Party hereby agrees that: (i) to that the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee and (ii) the Guarantor Guarantors shall have all defenses to the payment of its their obligations under this Limited Guarantee (which in any event shall be subject to the Cap Caps) to the extent applicable) that would be such defenses are available to Parent and/or Merger Sub Purchaser or any assignee under the Merger terms of the Arrangement Agreement with respect to the Guaranteed Obligations as well as (other than, in each case, defenses arising from insolvency, bankruptcy, reorganization, dissolution, receivership, moratorium or other similar proceeding affecting Purchaser, any defenses relating to the lack of corporate (or similar organizational) power or authority of Purchaser or any other defenses expressly waived by the Arrangement Agreement or this Limited Guarantee) (it being understood, however, that no such defenses described in this paragraph shall be available in respect of fraud a Guarantor from and after such time as the Guaranteed Obligations shall have become payable pursuant to a final, non-appealable judgment or willful misconduct order of a court of competent jurisdiction or a written settlement agreement duly executed by Xxxxxxxxx and/or such Guarantor, on the one hand, and the Guaranteed Party hereunder on the other hand). Each and every right, remedy and power hereby granted to the Guaranteed Party or allowed it by Law or other agreement shall be cumulative and not exclusive of any breach other, and may be exercised by the Guaranteed Party at any time or from time to time. The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Party’s rights against Purchaser or any Person now or hereafter liable for any Guaranteed Obligations or interested in the transactions contemplated by the Arrangement Agreement (other than any other Guarantor as required by Section 1) prior to proceeding against any Guarantor hereunder. The failure by the Guaranteed Party to pursue rights or remedies against Purchaser or any other Person, other than any other Guarantor as required by Section 1 shall not relieve any Guarantor of any term hereofliability 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.

Appears in 1 contract

Samples: Limited Guarantee (Nuvei Corp)

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