LIMITED GUARANTEE
Exhibit 99.(d)(4)
EXECUTION VERSION
This LIMITED GUARANTEE (this “Limited Guarantee”), dated as of August 4, 2021, is made by Unicorn Holding Partners LP (each a “Guarantor,” and collectively, the “Guarantors”) in favor of New Frontier Health Corporation, an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Guaranteed Party”). Each capitalized term used and not defined herein shall have the meaning ascribed to it in the Merger Agreement, except as otherwise provided herein.
(a) To induce the Guaranteed Party to enter into that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”) among Unicorn II Holdings Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“HoldCo”), Unicorn II Parent Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands and a wholly-owned subsidiary of HoldCo (“Parent”), Unicorn II Merger Sub Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“Merger Sub”), and the Guaranteed Party, pursuant to which Merger Sub will merge with and into the Guaranteed Party (the “Merger”), the Guarantors, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantee to the Guaranteed Party, as a primary obligor and not merely as a surety, subject to the terms and conditions hereof, but only up to the Maximum Amount (as defined below), the due and punctual payment, performance and discharge of 34.39% (the “Guaranteed Percentage”) of HoldCo’s obligation (i) to pay the Guaranteed Party the HoldCo Termination Fee if and when due pursuant to Section 9.3(b) of the Merger Agreement, (ii) to pay any amounts if and when due pursuant to Section 9.3(d) of the Merger Agreement, and (iii) to pay any amounts if and as required pursuant to Section 7.5(g) of the Merger Agreement (the obligations contemplated by the immediately preceding clauses (i), (ii) and (iii) collectively, without regard to the Guaranteed Percentage, the “Guaranteed Obligations”); provided that (x) the maximum aggregate liability of the Guarantors hereunder shall not exceed US$22,102,166 less the Guaranteed Percentage of any amount actually paid by or on behalf of HoldCo to the Guaranteed Party in respect of the Guaranteed Obligations (the “Maximum Amount”), (y) the liabilities of each Guarantor hereunder shall be several, and not joint and several, based on its pro rata percentage as set forth opposite each Guarantor’s name in Schedule A hereto (each, a “Pro Rata Percentage” of the relevant Guarantor) (subject to adjustment by the Guarantors from time to time, provided that such adjustment shall be accompanied by the assignment of the corresponding portions of the rights and obligations hereunder pursuant to Section 11 in relation to the adjusted liabilities of the Guarantors and shall be notified to the Guaranteed Party substantially concurrently with (and in any event within 24 hours of) the adjustment; provided further that in any event the total Pro Rata Percentage of the Guarantors (including any permitted assigns) shall always equal 100%); and (z) the maximum aggregate liability of each Guarantor hereunder with respect to the Guaranteed Percentage of the Guaranteed Obligations shall not exceed such Guarantor’s Pro Rata Percentage of the Maximum Amount (each, a “Pro Rata Percentage Maximum Amount”), and the Guaranteed Party hereby agrees that (A) the Guarantors shall in no event be required to pay more than the Maximum Amount and no Guarantor shall in any event be required to pay more than its Pro Rata Percentage Maximum Amount under or in respect of this Limited Guarantee and (B) no Guarantor shall have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party Group (as defined below)) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement or the letter agreement dated on or around date hereof between the Guarantors and HoldCo, pursuant to which the Guarantors have agreed to make a certain equity contribution to HoldCo (the “Equity Commitment Letter”), other than as expressly set forth herein or in the Equity Commitment Letter. This Limited Guarantee may be enforced for the payment of money only. The Guaranteed Party, by execution of this Limited Guarantee, further acknowledges that, in the event that HoldCo has any unsatisfied Guaranteed Obligations, payment of the Pro Rata Percentage of the Guaranteed Percentage of the Guaranteed Obligations in accordance with and subject to the terms and conditions hereof (including the applicable Pro Rata Percentage Maximum Amount) by any Guarantor (or by any other person on behalf of such Guarantor) shall constitute satisfaction in full of such Guarantor’s obligations with respect thereto. All payments hereunder shall be made in United States dollars in immediately available funds. Concurrently with the delivery of this Limited Guarantee, each of Aspex Master Fund, Yunqi China Special Investment A, WSCP VIII EMP Onshore Investments L.P., WSCP VIII EMP Offshore Investments L.P., West Street Capital Partners VIII, L.P., West Street Capital Partners VIII - Parallel, L.P., WSCP VIII Offshore Investments, SLP, Xxxxxxx Xxxxx Asia Strategic II Pte. Ltd., West Street Private Markets 2021, L.P., Warburg Pincus (Callisto) Global Growth (Cayman), L.P., Warburg Pincus (Europa) Global Growth (Cayman), L.P., Warburg Pincus Global Growth-B (Cayman), L.P., Warburg Pincus Global Growth-E (Cayman), L.P., Warburg Pincus Global Growth Partners (Cayman), L.P., WP Global Growth Partners (Cayman), L.P., Warburg Pincus China-Southeast Asia II (Cayman), L.P., Warburg Pincus China-Southeast Asia II-E (Cayman), L.P., WP China-Southeast Asia II Partners (Cayman), L.P., Warburg Pincus China-Southeast Asia II Partners, L.P., Proprium Real Estate Special Situations Fund, LP, Xx Xxxx Da Sirius Inv. Limited, Gaorong Partners Fund V, L.P., Gaorong Partners Fund V-A, L.P., Pleiad Asia Master Fund, Pleiad Asia Equity Master Fund and Newquest Asia Fund IV (Singapore) Pte. Ltd. (collectively, the “Other Guarantors,” and each, an “Other Guarantor”) is also entering into a limited guarantee substantially identical to this Limited Guarantee (collectively, the “Other Guarantees,” and each, an “Other Guarantee”) with the Guaranteed Party. The Guaranteed Party represents to the Guarantors that, other than this Limited Guarantee, the Other Guarantees and the Equity Commitment Letters (as defined below), and except as has been furnished to the Guarantors prior to the date hereof, there has been and will be no agreement, understanding or other arrangement (whether written or oral) entered into by the Guaranteed Party with any Other Guarantor in respect of the subject matters of this Limited Guarantee or the Other Guarantees. This Limited Guarantee shall become effective upon the substantially simultaneous signing of this Limited Guarantee and the Other Guarantees.
(b) All payments made by the Guarantors hereunder shall be free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If HoldCo fails to pay or cause to be paid any or all of the Guaranteed Obligations as and when due pursuant to Section 9.3(b), 9.3(d), or 7.5(g) of the Merger Agreement, as applicable, and subject to the other relevant terms and limitations of the Merger Agreement, then each Guarantor shall immediately pay to the Guaranteed Party such Guarantor’s Pro Rata Percentage of the Guaranteed Percentage of such Guaranteed Obligations (subject to the Maximum Amount and the Pro Rata Percentage Maximum Amounts), and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party’s option, and so long as HoldCo remains in breach of such Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect such Guaranteed Obligations from the Guarantors, subject to the Maximum Amount and the Pro Rata Percentage Maximum Amounts.
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(c) The Guarantors hereby agree to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder, if (i) any Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding or (ii) any 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 such Guarantor is required to make such payment hereunder.
(a) This Limited Guarantee is an unconditional and continuing guarantee of payment, not of collection, and a separate action or actions may be brought and prosecuted against the Guarantors to enforce this Limited Guarantee, irrespective of whether any action is brought against HoldCo, Parent, Merger Sub or any other Person or whether HoldCo, Parent, Merger Sub or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantors under this Limited Guarantee, on the one hand, and the obligations of each Other Guarantor under the applicable Other Guarantee, on the other hand, shall be several and not joint.
(b) The liability of the Guarantors under this Limited Guarantee shall, to the fullest extent permitted under applicable Law, be absolute, irrevocable and unconditional, irrespective of:
(i) any change in the corporate existence, structure or ownership of HoldCo, Parent or Merger Sub, or any other Person interested in the Transactions;
(ii) any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting HoldCo, Parent, Merger Sub or any other Person now or hereafter interested in the Transactions or any of their respective assets;
(iii) any waiver, amendment, modification of, or other consent to or departure from the Merger Agreement or any other agreement or instrument evidencing, securing or otherwise executed by HoldCo, Parent, Merger Sub, any Other Guarantor or any other Person interested in the Transactions in connection with any of the Guaranteed Obligations, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of, any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof, in each case to the extent that any of the foregoing does not have the effect of increasing the Maximum Amount;
(iv) the existence of any claim, set-off or other right that the Guarantors may have at any time against HoldCo, Parent, Merger Sub, the Guaranteed Party or any other Person, whether in connection with any Guaranteed Obligation or otherwise, other than in each case (A) any claim or set-off against or defense to the payment of the Guaranteed Obligations that are available to HoldCo, Parent or Merger Sub under the Merger Agreement, (B) with respect to this Limited Guarantee, a breach by the Guaranteed Party of this Limited Guarantee or (C) in respect of fraud or willful misconduct of the Guaranteed Party or any of its Affiliates in connection with the Merger Agreement or the Transactions;
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(v) the failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against HoldCo, Parent, Merger Sub, any Other Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation;
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations;
(vii) any other act or omission that may 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 as a result of payment of the Guaranteed Obligations in accordance with their terms), other than in each case with respect to (A) any claim or set-off against or defense to the payment of the Guaranteed Obligations that are available to HoldCo, Parent or Merger Sub under the Merger Agreement, (B) with respect to this Limited Guarantee, a breach by the Guaranteed Party of this Limited Guarantee or (C) in respect of fraud or willful misconduct of the Guaranteed Party or any of its Affiliates in connection with the Merger Agreement or the Transactions; or
(viii) the value, genuineness, validity, illegality or enforceability of the Merger Agreement, any Other Guarantee, the Equity Commitment Letter, the equity commitment letters entered into between the investors other than the Guarantors (collectively, the “Other Investors”) and HoldCo dated on or around the date hereof (collectively, the “Other Equity Commitment Letters” and together with the Equity Commitment Letter, collectively, the “Equity Commitment Letters”), or any other agreement or instrument referred to herein or therein, other than in each case with respect to (A) any claim or set-off against or defense to the payment of the Guaranteed Obligations that are available to HoldCo, Parent or Merger Sub under the Merger Agreement, (B) with respect to this Limited Guarantee, a breach by the Guaranteed Party of this Limited Guarantee or (C) in respect of fraud or willful misconduct of the Guaranteed Party or any of its Affiliates in connection with the Merger Agreement or the Transactions.
(c) The Guarantors hereby waive any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantors hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between HoldCo and/or the Guarantors, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. When pursuing any of its rights and remedies hereunder against the Guarantors, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against HoldCo, Parent, Merger Sub, any Other Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from HoldCo or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of HoldCo or any such other Person or any right of offset, shall not relieve the Guarantors 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.
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(d) To the fullest extent permitted by Law, the Guarantors irrevocably waive promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any other notice, in each case, to the extent not provided for herein (except for notices to be provided to HoldCo pursuant to the terms of the Merger Agreement), all defenses 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 marshaling of assets of any Person interested in Transactions, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations (i) that are available to Parent or Merger Sub under the Merger Agreement, (ii) in respect of a breach by the Guaranteed Party of this Limited Guarantee or (iii) 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 Guarantee).
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that HoldCo, Parent, Merger Sub or any Other Guarantor becomes subject to a bankruptcy, insolvency, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantors’ obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to HoldCo, Parent, Merger Sub, the Guarantors, any Other Guarantor or any other Person for any reason whatsoever (other than any rescissions or returned payments due to or as a result of fraud or willful misconduct of the Guaranteed Party or any of its Affiliates), the Guarantors shall remain liable hereunder in accordance with the terms hereof with respect to such Guaranteed Obligation as if such payment had not been made, so long as this Limited Guarantee has not been terminated in accordance with its terms.
(f) Notwithstanding anything to the contrary contained in this Limited Guarantee, the Guaranteed Party hereby agrees that: (i) the Guarantors shall have all defenses to the payment of their obligations under this Limited Guarantee that would be available to HoldCo, Parent and/or Merger Sub under the Merger Agreement with respect to the Guaranteed Obligations as well as any defenses in respect of fraud or willful misconduct of any member of the Guaranteed Party Group or any breach by the Guaranteed Party of any term hereof, and (ii) the Guarantors may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantors under this Limited Guarantee, any claim, set-off, deduction, defense or release that HoldCo, Parent or Merger Sub would be entitled to assert against the Guaranteed Party under the terms of, or with respect to, the Merger Agreement that would relieve each of HoldCo, Parent and Merger Sub of its obligations under the Merger Agreement with respect to the Guaranteed Obligations.
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(a) it is duly incorporated, validly existing and in good standing under the laws of the jurisdiction in which it is formed and has all requisite corporate or similar power and authority to execute, deliver and perform this Limited Guarantee;
(b) the execution, delivery and performance of this Limited Guarantee have been duly authorized by all necessary action on such Guarantor’s part and do not contravene any provision of such Guarantor’s organizational documents or any Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Guarantor or its assets;
(c) except as is not, individually or in the aggregate, reasonably likely to impair or delay such Guarantor’s performance of its obligations in any material respect, all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by such Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(d) this Limited Guarantee has been duly and validly executed and delivered by such Guarantor and, assuming due execution and delivery of this Limited Guarantee and the Merger Agreement by all parties hereto and thereto, as applicable, other than the Guarantors, this Limited Guarantee constitutes a legal, valid and binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms, subject to the Enforceability Exceptions; and
(e) such Guarantor has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for such Guarantor to fulfill its obligations under this Limited Guarantee shall be available to such Guarantor or its assignee pursuant to Section 11 for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
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if to the Guarantors:
Unicorn Holding Partners LP
Xxxx 0000, Xxxxxx Xxxxxx
Xx. 000, Xxxxxxx Xxxx Road, Jing’An
Shanghai, China
Attention: Xxxx Xx
E-mail: xxxx@xxx-xxxxxxxx.xxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx XXX
0000 Xxxxx World Tower
0 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx 000000, Xxxxx
Attention: | Yang Wang |
E-mail: | Xxxx.Xxxx@xxxxxx.xxx |
If to the Guaranteed Party, as provided in the Merger Agreement.
13. Governing Law; Dispute Resolution.
(a) This Limited Guarantee, and all claims or causes of action (whether at law or in equity, in contract or in tort) that may be based upon, arise out of or relate to this Limited Guarantee or the negotiation, execution or performance hereof, shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York, without regard to the conflicts of law principles thereof that would subject such matter to the Laws of another jurisdiction.
(b) Any Actions arising out of or in any way relating to this Limited Guarantee shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section 13 (the “Rules”). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the tribunal shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.
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(c) Notwithstanding the foregoing, the parties hereto hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 13, any party may, to the extent permitted under the rules and procedures of the HKIAC, seek an interim injunction or other form of relief from the HKIAC as provided for in its Rules. Such application shall also be governed by, and construed in accordance with, the Laws of the State of New York.
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(a) No amendment, supplementation, modification or waiver of this Limited Guarantee or any provision hereof shall be enforceable unless approved by the Guaranteed Party and the Guarantors in writing. No failure on the part of either party to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by either party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power hereunder. Subject to Section 5, no waiver by any party of any breach or violation of, or default under, this Limited Guarantee, whether intentional or not, will be deemed to extend to any prior or subsequent breach, violation or default hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. Except as otherwise set forth therein, each and every right, remedy and power hereby granted to either party or allowed it by Law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by such party at any time or from time to time subject to the terms and provisions hereof. The Guaranteed Party and its Affiliates are not relying upon any prior or contemporaneous statement, undertaking, understanding, agreement, representation or warranty, whether written or oral, made by or on behalf of the Guarantors or any Non-Recourse Party in connection with this Limited Guarantee except as expressly set forth herein by the Guarantors. The Guarantors and their Affiliates are not relying upon any prior or contemporaneous statement, undertaking, understanding, agreement, representation or warranty, whether written or oral, made by or on behalf of the Guaranteed Party in connection with this Limited Guarantee except as expressly set forth herein by the Guaranteed Party.
(b) Any term or provision of this Limited Guarantee that is invalid or unenforceable in any jurisdiction shall be, as to such jurisdiction, ineffective solely to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction; provided, however, that this Limited Guarantee may not be enforced in violation of the limitation of the amount payable by the Guarantors hereunder to the Maximum Amount or by each Guarantor to its Pro Rata Percentage Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. Each party hereto covenants and agrees that it shall not assert, and shall cause its respective Affiliates and Representatives not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable in accordance with its terms.
(c) The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Limited Guarantee.
(d) All parties hereto acknowledge that each party and its counsel have reviewed this Limited Guarantee and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Limited Guarantee.
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UNICORN HOLDING PARTNERS LP | ||
By: | New Frontier Investment Management Limited, its general partner | |
By: | /s/ Xxxx Xx | |
Name: | Xxxx Xx | |
Title: Authorized Signatory |
Project Unicorn II – Signature Page to Limited Guarantee
NEW FRONTIER HEALTH CORPORATION | ||
By: | /s/ Xxxxxxxx Xxxx | |
Name: | Xxxxxxxx Xxxx | |
Title: Authorized Signatory |
Project Unicorn II – Signature Page to Limited Guarantee
Schedule A
Project Unicorn II – Schedule A to Limited Guarantee