Common use of Maximum Liability of Parent Clause in Contracts

Maximum Liability of Parent. It being understood that the intent of Starwood is to obtain a guaranty from Parent, and the intent of Parent is to incur guaranty obligations, in an amount no greater than the largest amount that would not render such obligations subject to avoidance under Section 548 of the Bankruptcy Code or any applicable state law relating to fraudulent conveyances or fraudulent transfers, it is hereby agreed that: A. if the sum of the obligations of Parent hereunder (the “Guarantor Obligations”) exceeds the sum (such sum, the “Total Available Net Assets”) of the Maximum Available Net Assets of Parent and Vistana, in the aggregate, then the Guarantor Obligations of Parent shall be limited to the greater of (i) the Total Available Net Assets and (ii) the value received by Parent in connection with the incurrence of the Guarantor Obligations to the greatest extent such value can be determined; and B. if, but for the operation of this Section 26.3B and notwithstanding Section 26.3A above, the Guarantor Obligations of Parent hereunder otherwise would be subject to avoidance under Section 548 of the Bankruptcy Code or any applicable state law relating to fraudulent conveyances or fraudulent transfers, taking into consideration Parent’s (i) rights of contribution, reimbursement and indemnity from Vistana and any other guarantors with respect to amounts paid by Parent in respect of the Obligations (calculated so as to reasonably maximize the total amount of obligations able to be incurred hereunder), and (ii) rights of subrogation to the rights of Starwood, then the Guarantor Obligations of Parent shall be the largest amount, if any, that would not leave Parent, after the incurrence of such obligations, insolvent or with unreasonably small capital within the meaning of Section 548 of the Bankruptcy Code or any applicable state law relating to fraudulent conveyances or fraudulent transfers, or otherwise make such obligations subject to such avoidance. Any Person asserting that the Guarantor Obligations of Parent are subject to Section 26.3A or are avoidable as referenced in Section 26.3B shall have the burden (including the burden of production and of persuasion) of proving (a) the extent to which such Guarantor Obligations, by operation of Section 26.3A, are less than the Obligations owed by Vistana to Starwood or (b) that, without giving effect to Section 26.3B, the Guarantor Obligations of Parent hereunder would be avoidable and the extent to which such Guarantor Obligations, by operation of Section 26.3B, are less than the Obligations of Vistana, as the case may be.

Maximum Liability of Parent. It being understood that the intent of Starwood Licensor is to obtain a guaranty from Parent, and the intent of Parent is to incur guaranty obligations, in an amount no greater than the largest amount that would not render such obligations subject to avoidance under Section 548 of the Bankruptcy Code or any applicable state law relating to fraudulent conveyances or fraudulent transfers, it is hereby agreed that: A. (a) if (i) the sum of the obligations of Parent hereunder (the “Guarantor Obligations”) exceeds (ii) the sum (such sum, the “Total Available Net Assets”) of the Maximum Available Net Assets of Parent and VistanaLicensee, in the aggregate, then the Guarantor Obligations of Parent shall be limited to the greater of (ix) the Total Available Net Assets and (iiy) the value received by Parent in connection with the incurrence of the Guarantor Obligations to the greatest extent such value can be determined; and B. (b) if, but for the operation of this Section 26.3B clause (b) and notwithstanding Section 26.3A clause (a) above, the Guarantor Obligations of Parent hereunder otherwise would be subject to avoidance under Section 548 of the Bankruptcy Code or any applicable state law relating to fraudulent conveyances or fraudulent transfers, taking into consideration Parent’s (i) rights of contribution, reimbursement and indemnity from Vistana Licensee and any other guarantors with respect to amounts paid by Parent in respect of the Obligations (calculated so as to reasonably maximize the total amount of obligations able to be incurred hereunder), and (ii) rights of subrogation to the rights of StarwoodLicensor, then the Guarantor Obligations of Parent shall be the largest amount, if any, that would not leave Parent, after the incurrence of such obligations, insolvent or with unreasonably unreasonable small capital within the meaning of Section 548 of the Bankruptcy Code or any applicable state law relating to fraudulent conveyances or fraudulent transfers, or otherwise make such obligations subject to such avoidance. Any Person asserting that the Guarantor Obligations of Parent are subject to Section 26.3A clause (a) or are avoidable as referenced in Section 26.3B clause (b) shall have the burden (including the burden of production and of persuasion) of proving (ai) the extent to which such Guarantor Obligations, by operation of Section 26.3Aclause (a), are less than the Obligations owed by Vistana Licensee to Starwood Licensor or (bii) that, without giving effect to Section 26.3Bclause (b), the Guarantor Obligations of Parent hereunder would be avoidable and the extent to which such Guarantor Obligations, by operation of Section 26.3Bclause (b), are less than the Obligations of VistanaLicensee, as the case may be.