Guarantee Limitations. (a) Each of the parties to this Agreement hereby confirms that it is the intention of all such persons that the obligations of each Guarantor organised under the laws of any state of the United States of America (a “U.S. Guarantor”) under this Clause 18 (Guarantees) do not constitute a fraudulent transfer or conveyance for the purposes of any proceeding of the type referred to in Clause 17.1(f), (g), (h), (i), (j) or (k) (Events of Default) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors, the United States Uniform Fraudulent Conveyance Act, the United States Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to the obligations of a U.S. Guarantor under this Clause 18 (Guarantees). To effect the foregoing intention, the Facility Agent, the Arranger Group, the Banks and the Guarantors hereby irrevocably agree that the obligations of each U.S. Guarantor at any time shall be limited to the maximum amount as will result in the obligations of such U.S. Guarantor under this Clause 18 (Guarantees) not constituting a fraudulent transfer or conveyance. (b) The liability of each Guarantor incorporated under the laws of Luxembourg under this Clause 18 (Guarantee) and under any indemnities contained elsewhere in this Agreement: (i) shall not include any obligation which, if incurred, would constitute the provision of financial assistance (as defined in article 49-6 of the Luxembourg Company Act of 10th August, 1915, as amended), whether directly or indirectly, for the subscription for, or the acquisition or the refinancing of the acquisition of, its own shares; and (ii) shall be limited, at any time, to an aggregate amount not exceeding the greater of: (A) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) as reflected in its then most recent annual accounts approved at a general meeting of its shareholders; and (B) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) immediately following Completion. For the avoidance of doubt, the obligations and liabilities of each Guarantor under this Clause 18 (Guarantee) shall include a guarantee of the liabilities to the Security Agent as joint creditor together with each of the other Senior Finance Parties under Clause 19.13 (Security Agent as Joint and Several Creditor and Representative) of the Intercreditor Agreement.
Appears in 1 contract
Guarantee Limitations. (a) Each Without limiting any specific exemptions set out below and notwithstanding any other provision of the parties to this Agreement hereby confirms that it is the intention of all such persons that the obligations of each Guarantor organised under the laws of any state of the United States of America (a “U.S. Guarantor”) under this Clause 18 (Guarantees) do not constitute a fraudulent transfer or conveyance for the purposes of any proceeding of the type referred to in Clause 17.1(f), (g), (h), (i), (j) or (k) (Events of Default) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors, the United States Uniform Fraudulent Conveyance Act, the United States Uniform Fraudulent Transfer Act or any similar foreign, federal or state law other Finance Document to the extent applicable to the obligations of a U.S. Guarantor under this Clause 18 (Guarantees). To effect the foregoing intention, the Facility Agent, the Arranger Group, the Banks and the Guarantors hereby irrevocably agree that the obligations of each U.S. Guarantor at any time shall be limited to the maximum amount as will result in the obligations of such U.S. Guarantor under this Clause 18 (Guarantees) not constituting a fraudulent transfer or conveyance.
(b) The liability of each Guarantor incorporated under the laws of Luxembourg under this Clause 18 (Guarantee) and under any indemnities contained elsewhere in this Agreementcontrary:
(i) shall not no Guarantor’s obligations and liabilities under this Clause 21 and under any other guarantee or indemnity provision in a Finance Document (the “Guarantee Obligations”) will extend to include any obligation whichor liability, if incurred, would constitute the provision of financial assistance (as defined in article 49-6 of the Luxembourg Company Act of 10th August, 1915, as amended), whether directly or indirectly, for the subscription for, or the acquisition or the refinancing of the acquisition of, its own sharesincluding any Swap Obligation; and
(ii) shall be limited, at no Transaction Security granted by a Guarantor will secure any timeGuarantee Obligation, to an aggregate amount not exceeding the greater of:extent that doing so would constitute unlawful financial assistance (notwithstanding any applicable exemptions and/or undertaking of any applicable prescribed whitewash or similar financial assistance procedures) in connection with the acquisition of shares in itself or its Holding Company under the laws of its jurisdiction of incorporation.
(Ab) If, notwithstanding paragraph (a) above, the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 giving of the Luxembourg Company Act of 10th August, 1915, as amended) as reflected guarantee in its then most recent annual accounts approved at a general meeting of its shareholders; and
(B) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 respect of the Luxembourg Company Act of 10th AugustGuarantee Obligations or Transaction Security would constitute unlawful financial assistance, 1915then, as amendedto the extent necessary to give effect to paragraph (a) immediately following Completion. For the avoidance of doubtabove, the obligations and liabilities of each Guarantor under this Clause 18 the Finance Documents will be deemed to have been split into two (Guarantee2) shall include a guarantee tranches; “Tranche 1” comprising those obligations which can be secured by the Guarantee Obligations of the liabilities relevant Guarantor or Transaction Security granted by the relevant Guarantor without breaching or contravening relevant financial assistance laws applicable to such Guarantor and “Tranche 2” comprising the remainder of the obligations under the Finance Documents. The Tranche 2 obligations will be excluded from the relevant Guarantee Obligations of such Guarantor (but only for so long as including them within such Guarantee Obligations would cause such Guarantor to be in breach of financial assistance laws applicable to it) and will be allocated to the Security Agent as joint creditor together with each Facility to which those obligations relate, to the extent that that can be determined and is permissible under the laws of the other Senior Finance Parties under Clause 19.13 (Security Agent as Joint and Several Creditor and Representative) jurisdiction of incorporation of the Intercreditor AgreementGuarantor in question.
Appears in 1 contract
Sources: Senior Facilities Agreement (Inspired Entertainment, Inc.)
Guarantee Limitations. (a) Each of Anything contained in this clause 17 to the parties to this Agreement hereby confirms that it is the intention of all such persons that contrary notwithstanding, the obligations of each Guarantor organised US Obligor under this clause 17 shall be limited to a maximum aggregate amount equal to the laws greatest amount that would not render such US Obligor's obligations under this clause 17 subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the US Bankruptcy Code or any state applicable provisions of comparable law of one or more of the states comprising the United States of America (a “U.S. Guarantor”) under this Clause 18 (Guarantees) do not constitute a fraudulent transfer or conveyance for collectively, the purposes of any proceeding of the type referred to in Clause 17.1(f"Fraudulent Transfer Laws"), (g)in each case after giving effect to all other liabilities of such US Obligor, (h)contingent or otherwise, (i), (j) or (k) (Events of Default) or Title 11, U.S. Code, or any similar foreign, federal or state law for that are relevant under the relief of debtors, the United States Uniform Fraudulent Conveyance Act, the United States Uniform Fraudulent Transfer Act or Laws (specifically excluding, however, any similar foreign, federal or state law liabilities of such US Obligor (a) in respect of intercompany indebtedness to any Group Company to the extent applicable that such indebtedness would be discharged in an amount equal to the obligations of a U.S. Guarantor under this Clause 18 (Guarantees). To effect the foregoing intention, the Facility Agent, the Arranger Group, the Banks amount paid by such US Obligor hereunder and the Guarantors hereby irrevocably agree that the obligations of each U.S. Guarantor at any time shall be limited to the maximum amount as will result in the obligations of such U.S. Guarantor under this Clause 18 (Guarantees) not constituting a fraudulent transfer or conveyance.
(b) The under any guarantee of senior unsecured indebtedness or indebtedness subordinated in right of payment to obligations of the Obligors outstanding under this agreement, which guarantee contains a limitation as to maximum amount similar to that set forth in this paragraph, pursuant to which the liability of each Guarantor incorporated such US Obligor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets to the value (as determined under the laws applicable provisions of Luxembourg under this Clause 18 (Guaranteethe Fraudulent Transfer Laws) and under of any indemnities contained elsewhere in this Agreement:
rights to subrogation, contribution, reimbursement, indemnity or similar right of such US Obligor pursuant to (i) shall not include any obligation which, if incurred, would constitute the provision of financial assistance (as defined in article 49-6 of the Luxembourg Company Act of 10th August, 1915, as amended), whether directly applicable law or indirectly, for the subscription for, or the acquisition or the refinancing of the acquisition of, its own shares; and
(ii) shall be limited, at any time, to agreement providing for an aggregate amount not exceeding the greater of:
(A) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 equitable allocation among such US Obligor and other affiliates of the Luxembourg Company Act Borrowers of 10th August, 1915, as amended) as reflected in its then most recent annual accounts approved at a general meeting of its shareholders; and
(B) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) immediately following Completion. For the avoidance of doubt, the obligations and liabilities of each Guarantor arising under this Clause 18 (Guarantee) shall include a guarantee of the liabilities to the Security Agent as joint creditor together with each of the other Senior Finance Parties under Clause 19.13 (Security Agent as Joint and Several Creditor and Representative) of the Intercreditor Agreementclause 17 by such parties.
Appears in 1 contract
Guarantee Limitations. (a) Each of Anything contained in this clause 15 to the parties to this Agreement hereby confirms that it is the intention of all such persons that contrary notwithstanding, the obligations of each Guarantor organised US Obligor under this clause 15 shall be limited to a maximum aggregate amount equal to the laws greatest amount that would not render such US Obligor's obligations under this clause 15 subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the US Bankruptcy Code or any state applicable provisions of comparable law of one or more of the states comprising the United States of America (a “U.S. Guarantor”) under this Clause 18 (Guarantees) do not constitute a fraudulent transfer or conveyance for collectively, the purposes of any proceeding of the type referred to in Clause 17.1(f"Fraudulent Transfer Laws"), (g)in each case after giving effect to all other liabilities of such US Obligor, (h)contingent or otherwise, (i), (j) or (k) (Events of Default) or Title 11, U.S. Code, or any similar foreign, federal or state law for that are relevant under the relief of debtors, the United States Uniform Fraudulent Conveyance Act, the United States Uniform Fraudulent Transfer Act or Laws (specifically excluding, however, any similar foreign, federal or state law liabilities of such US Obligor (a) in respect of intercompany indebtedness to any Group Company to the extent applicable that such indebtedness would be discharged in an amount equal to the obligations of a U.S. Guarantor under this Clause 18 (Guarantees). To effect the foregoing intention, the Facility Agent, the Arranger Group, the Banks amount paid by such US Obligor hereunder and the Guarantors hereby irrevocably agree that the obligations of each U.S. Guarantor at any time shall be limited to the maximum amount as will result in the obligations of such U.S. Guarantor under this Clause 18 (Guarantees) not constituting a fraudulent transfer or conveyance.
(b) The under any guarantee of senior unsecured indebtedness or indebtedness subordinated in right of payment to obligations of the Obligors outstanding under this agreement, which guarantee contains a limitation as to maximum amount similar to that set forth in this paragraph, pursuant to which the liability of each Guarantor incorporated such US Obligor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets to the value (as determined under the laws applicable provisions of Luxembourg under this Clause 18 (Guaranteethe Fraudulent Transfer Laws) and under of any indemnities contained elsewhere in this Agreement:
rights to subrogation, contribution, reimbursement, indemnity or similar right of such US Obligor pursuant to (i) shall not include any obligation which, if incurred, would constitute the provision of financial assistance (as defined in article 49-6 of the Luxembourg Company Act of 10th August, 1915, as amended), whether directly applicable law or indirectly, for the subscription for, or the acquisition or the refinancing of the acquisition of, its own shares; and
(ii) shall be limited, at any time, to agreement providing for an aggregate amount not exceeding the greater of:
(A) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 equitable allocation among such US Obligor and other affiliates of the Luxembourg Company Act Borrower of 10th August, 1915, as amended) as reflected in its then most recent annual accounts approved at a general meeting of its shareholders; and
(B) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) immediately following Completion. For the avoidance of doubt, the obligations and liabilities of each Guarantor arising under this Clause 18 (Guarantee) shall include a guarantee of the liabilities to the Security Agent as joint creditor together with each of the other Senior Finance Parties under Clause 19.13 (Security Agent as Joint and Several Creditor and Representative) of the Intercreditor Agreementclause 15 by such parties.
Appears in 1 contract
Guarantee Limitations. (a) Each This guarantee does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of section 44 or 45 of the parties South African Companies Act, and (in the case of Aegis Outsourcing South Africa (Pty) Ltd.) shall be subject to the the approval of the Financial Surveillance Department of the South African Reserve Bank being obtained, pursuant to Clause 23.35(a)(iii)(C) (Conditions subsequent)).
(b) Notwithstanding any term or provision of this Clause 19 or any other term in this Agreement or any Finance Document, each Finance Party agrees that on and from the date that Startek Philippines accedes to this Agreement hereby confirms that it is as a Guarantor, the intention liability of all such persons that the obligations of each Guarantor organised under the laws of any state of the United States of America (a “U.S. Guarantor”) Startek Philippines under this Clause 18 19 shall be limited to a maximum aggregate amount equal to US$17,600,000.00 (Guaranteesor its equivalent in another currency).
(c) do US Guarantor Guarantee Limitations:
(i) Notwithstanding any term or provision of this Clause 19 or any other term in this Agreement or any Finance Document, each Finance Party agrees that the US Guarantor's liability under this Clause 19, without the requirement of amendment or any other formality, be limited to a maximum aggregate amount equal to the largest amount that would not constitute render its liability hereunder subject to avoidance as a fraudulent transfer or conveyance for the purposes under Section 548 of any proceeding Title 11 of the type referred to in Clause 17.1(f), (g), (h), (i), (j) or (k) (Events of Default) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors, the United States Uniform Fraudulent Conveyance ActBankruptcy Code or any applicable provision of comparable state law, in each case after giving effect to all other liabilities of such US Guarantor, contingent or otherwise, that are relevant under the United States Uniform Fraudulent Transfer Act or any similar foreign, federal or state law Laws and after giving effect as assets to the extent value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, reimbursement, indemnification or contribution of such US Guarantor pursuant to applicable law or pursuant to the obligations terms of a U.S. Guarantor under this Clause 18 (Guarantees). To effect the foregoing intention, the Facility Agent, the Arranger Group, the Banks and the Guarantors hereby irrevocably agree that the obligations of each U.S. Guarantor at any time shall be limited to the maximum amount as will result in the obligations of such U.S. Guarantor under this Clause 18 (Guarantees) not constituting a fraudulent transfer or conveyanceagreement.
(bii) The liability of each US Guarantor incorporated under the laws of Luxembourg under this Clause 18 (Guarantee) and under any indemnities contained elsewhere in this Agreementacknowledges that:
(iA) shall not include any obligation which, if incurred, would constitute the provision of financial assistance (it will receive valuable direct or indirect benefits as defined in article 49-6 a result of the Luxembourg Company Act of 10th August, 1915, as amended), whether directly or indirectly, for transactions financed by the subscription for, or the acquisition or the refinancing of the acquisition of, its own sharesFinance Documents; and
(iiB) shall be limited, at those benefits will constitute reasonably equivalent value and fair consideration for the purpose of any time, fraudulent transfer law.
(iii) The US Guarantor represents and warrants to an aggregate amount not exceeding the greater ofeach Finance Party that:
(A) the Luxembourg Guarantor’s net worth aggregate amount of its debts (“capitaux propres”including its obligations under the Finance Documents) is less than the aggregate value (being the lesser of fair valuation and present fair saleable value) of its assets;
(B) its capital is not unreasonably small to carry on its business as referred it is being conducted;
(C) it has not incurred and does not intend to in article 214 incur debts beyond its ability to pay as they mature; and
(D) it has not made a transfer or incurred any obligation under any Finance Document with the intent to hinder, delay or defraud any of its present or future creditors. For purposes of the Luxembourg Company Act foregoing, the amount of 10th Augustcontingent liabilities have been computed as the amount that, 1915in light of all the facts and circumstances existing on the date this representation and warranty is made, as amendedcan reasonably be expected to become an actual or matured liability.
(iv) as reflected Each representation and warranty in its then most recent annual accounts approved at this paragraph (c) is deemed to be repeated by:
(A) each Additional Guarantor on the date that Additional Guarantor becomes a general meeting of its shareholdersUS Guarantor; and
(B) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of US Guarantor on the Luxembourg Company Act of 10th August, 1915, as amended) immediately following Completion. For the avoidance of doubt, the obligations and liabilities date of each Guarantor under this Clause 18 Utilisation Request, on each Utilisation Date and on the first day of each Interest Period; and
(GuaranteeC) shall include a guarantee of the liabilities is, when repeated, applied to the Security Agent as joint creditor together with each circumstances existing at the time of the other Senior Finance Parties under Clause 19.13 (Security Agent as Joint and Several Creditor and Representative) of the Intercreditor Agreementrepetition.
Appears in 1 contract
Sources: Facilities Agreement (StarTek, Inc.)
Guarantee Limitations. (a) Each of the parties to this Agreement hereby confirms that it is the intention of all such persons that the obligations of each Guarantor organised under the laws of any state of the United States of America (The guarantee given by a “U.S. Guarantor”) under this Clause 18 (Guarantees) do not constitute a fraudulent transfer or conveyance for the purposes of any proceeding of the type referred to in Clause 17.1(f), (g), (h), (i), (j) or (k) (Events of Default) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors, the United States Uniform Fraudulent Conveyance Act, the United States Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to the obligations of a U.S. Guarantor under this Clause 18 (Guarantees). To effect the foregoing intention, the Facility Agent, the Arranger Group, the Banks and the Guarantors hereby irrevocably agree that the obligations of each U.S. Guarantor at 19 does not apply to any time shall be limited liability to the maximum amount as will extent that it would result in that Guarantor breaching any applicable law and/or regulation (including any financial assistance laws) and, with respect to any Additional Guarantor, is subject to any limitations set out in the obligations of Accession Deed applicable to such U.S. Guarantor under this Clause 18 (Guarantees) not constituting a fraudulent transfer or conveyanceAdditional Guarantor.
(b) The liability Any term or provision of this Clause 19 or any other term in this Agreement or any Finance Document notwithstanding, the maximum aggregate amount of the obligations for which any Guarantor shall be liable under this Agreement or any other Finance Document shall in no event exceed an amount equal to the largest amount that would not render such Guarantor’s obligations under this Agreement or any Finance Document subject to avoidance under applicable United States federal or state fraudulent transfer, fraudulent conveyance or similar laws.
(c) Any term or provision of this Clause 19 or any other term in this Agreement or any Finance Document notwithstanding, no Guarantor (other than any Qualified ECP Guarantor) shall be liable for any Excluded Swap Obligation.
(d) Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each Guarantor incorporated to honor all of its obligations under the laws Finance Documents in respect of Luxembourg Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this paragraph (d) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Clause 18 19, or otherwise under the Finance Documents, voidable under applicable United States federal or state law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this paragraph (Guarantee) and under any indemnities contained elsewhere in this Agreement:
(id) shall not include any obligation which, if incurred, would constitute remain in full force and effect until the provision of financial assistance Senior Discharge Date (as defined in article 49-6 of the Luxembourg Company Act of 10th AugustIntercreditor Agreement). Each Qualified ECP Guarantor intends that this paragraph (d) constitute, 1915, as amended), whether directly or indirectly, for the subscription for, or the acquisition or the refinancing of the acquisition of, its own shares; and
and this paragraph (iid) shall be limiteddeemed to constitute, at any timea “keepwell, to an aggregate amount not exceeding support, or other agreement” for the greater of:
(A) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) as reflected in its then most recent annual accounts approved at a general meeting of its shareholders; and
(B) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) immediately following Completion. For the avoidance of doubt, the obligations and liabilities benefit of each Guarantor under this Clause 18 (Guarantee) shall include a guarantee other Obligor for all purposes of the liabilities to the Security Agent as joint creditor together with each of the other Senior Finance Parties under Clause 19.13 (Security Agent as Joint and Several Creditor and RepresentativeSection 1a(18)(A)(v)(II) of the Intercreditor Commodity Exchange Act.
(e) In this Agreement.:
Appears in 1 contract
Guarantee Limitations. (a) Each of the parties to this Agreement hereby confirms that it is the intention of all such persons that the obligations of each Guarantor organised under the laws of any state of the United States of America (The guarantee given by a “U.S. Guarantor”) under this Clause 18 (Guarantees) do not constitute a fraudulent transfer or conveyance for the purposes of any proceeding of the type referred to in Clause 17.1(f), (g), (h), (i), (j) or (k) (Events of Default) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors, the United States Uniform Fraudulent Conveyance Act, the United States Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to the obligations of a U.S. Guarantor under this Clause 18 (Guarantees). To effect the foregoing intention, the Facility Agent, the Arranger Group, the Banks and the Guarantors hereby irrevocably agree that the obligations of each U.S. Guarantor at 19 does not apply to any time shall be limited liability to the maximum amount as will extent that it would result in that Guarantor breaching any applicable law and/or regulation (including any financial assistance laws) and, with respect to any Additional Guarantor, is subject to any limitations set out in the obligations of Accession Deed applicable to such U.S. Guarantor under this Clause 18 (Guarantees) not constituting a fraudulent transfer or conveyanceAdditional Guarantor.
(b) The liability Any term or provision of this Clause 19 or any other term in this Agreement or any Finance Document notwithstanding, the maximum aggregate amount of the obligations for which any Guarantor shall be liable under this Agreement or any other Finance Document shall in no event exceed an amount equal to the largest amount that would not render such Guarantor’s obligations under this Agreement or any Finance Document subject to avoidance under applicable United States federal or state fraudulent transfer, fraudulent conveyance or similar laws.
(c) Any term or provision of this Clause 19 or any other term in this Agreement or any Finance Document notwithstanding, no Guarantor (other than any Qualified ECP Guarantor) shall be liable for any Excluded Swap Obligation.
(d) Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each Guarantor incorporated to honour all of its obligations under the laws Finance Documents in respect of Luxembourg Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this paragraph (d) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Clause 18 19, or otherwise under the Finance Documents, voidable under applicable United States federal or state law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this paragraph (Guarantee) and under any indemnities contained elsewhere in this Agreement:
(id) shall not include any obligation which, if incurred, would constitute remain in full force and effect until the provision of financial assistance Senior Discharge Date (as defined in article 49-6 of the Luxembourg Company Act of 10th AugustIntercreditor Agreement). Each Qualified ECP Guarantor intends that this paragraph (d) constitute, 1915, as amended), whether directly or indirectly, for the subscription for, or the acquisition or the refinancing of the acquisition of, its own shares; and
and this paragraph (iid) shall be limiteddeemed to constitute, at any timea “keepwell, to an aggregate amount not exceeding support, or other agreement” for the greater of:
(A) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) as reflected in its then most recent annual accounts approved at a general meeting of its shareholders; and
(B) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) immediately following Completion. For the avoidance of doubt, the obligations and liabilities benefit of each Guarantor under this Clause 18 (Guarantee) shall include a guarantee other Obligor for all purposes of the liabilities to the Security Agent as joint creditor together with each of the other Senior Finance Parties under Clause 19.13 (Security Agent as Joint and Several Creditor and RepresentativeSection 1a(18)(A)(v)(II) of the Intercreditor Commodity Exchange Act.
(e) In this Agreement.:
Appears in 1 contract
Guarantee Limitations. (aA) Each US Obligor and each Finance Party (by its acceptance of the parties to benefits of the guarantee under this Agreement Clause 23) hereby confirms that it is the its intention of all such persons that the obligations of each Guarantor organised under the laws of any state of the United States of America (a “U.S. Guarantor”) guarantee under this Clause 18 (Guarantees) do 23 shall not constitute a fraudulent transfer or conveyance for the purposes of any proceeding of the type referred to in Clause 17.1(f)bankruptcy, (g), (h), (i), (j) insolvency or (k) (Events of Default) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtorslaw, the United States Uniform Fraudulent Conveyance Act, the United States Uniform Fraudulent Transfer Act or any similar foreignfederal, federal state or state law to the extent applicable to the obligations of a U.S. Guarantor under this Clause 18 (Guarantees)foreign law. To effect effectuate the foregoing intention, each US Obligor and each Finance Party (by its acceptance of the Facility Agent, benefits of the Arranger Group, the Banks and the Guarantors guarantee under this Clause 23) hereby irrevocably agree agrees that the maximum aggregate amount of the obligations of each U.S. Guarantor at any time for which such US Obligor shall be liable under such guarantee shall be limited to the maximum amount as will will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of such US Obligor that are relevant under such laws, and after giving effect to any rights to contribution pursuant to any agreement providing for equitable contribution among such US Obligor and the other Obligors, result in the such obligations of such U.S. Guarantor under this Clause 18 (Guarantees) US Obligor not constituting a fraudulent transfer or conveyance.
(bB) The liability Notwithstanding anything to the contrary set forth in this Agreement or any other Finance Document, no such agreement shall guarantee or secure the satisfaction of each Guarantor incorporated Excluded Swap Obligations, and Excluded Swap Obligations shall be deemed to be excluded from the obligations of the Obligors to the Finance Parties under the laws of Luxembourg Finance Documents and from any comparable obligations set forth in any other Finance Document.
(C) Notwithstanding anything to the contrary in this Agreement or any other Finance Document, the rights and obligations under or in connection with this Agreement and/ or any other Finance Document (including, without limitation, any obligations expressed to be assumed under this Clause 18 23 and Clause 30.4 (GuaranteeAdditional Guarantors)) and under any indemnities contained elsewhere in this Agreement:
expressed to be assumed by a Slovenian Obligor, including without limitation ENDAVA, digitalne rešitve, d.o.o. (i“Slovenian Obligor Obligations”) shall not include create or be construed to create any obligation whichof a Slovenian Obligor to act in violation of mandatory Slovenian distribution restriction and capital maintenance rules (ohranjanje osnovnega kapitala), if incurred, set out in Articles 227 and 495 of the Slovenian Companies Act (Zakon o gospodarskih družbah) or any other legal provision with analogous effect (the “Slovenian Capital Maintenance Rules”). All Slovenian Obligor Obligations shall be limited to an amount equal to the largest amount that would constitute not violate or contradict the provision of financial assistance Slovenian Capital Maintenance Rules.
(D) If and to the extent any Slovenian Obligor Obligation should otherwise violate or contradict Slovenian Limitation Rules (as defined below) and should be invalid or unenforceable in article 49-6 whole or in part, such Slovenian Obligor Obligation shall be deemed to be replaced or limited to the following amounts (even if this results in any or all Slovenian Obligor Obligations being reduced to zero):
(1) if a Slovenian Obligor Obligation would result in a breach of Slovenian Capital Maintenance Rules, an amount equal to the largest amount that would not violate or contradict the rules set out in this item (1);
(2) if a Slovenian Obligor Obligation would result in a breach of corporate benefit, financial assistance, fraudulent preference or liquidity or solvency rules or regulations (or analogous restrictions), an amount equal to the largest amount that would not violate or contradict the rules set out in this item (2);
(3) if a Slovenian Obligor Obligation would result in a risk to the officers of a Slovenian Obligor of (x) contravention of their fiduciary duties and/or (y) civil or criminal liability, an amount equal to the largest amount that would, under the rules set out in this item (3), not result in such risk to the officers of a Slovenian Obligor in respect of (x) and (y);
(4) if (x) a Slovenian Obligor Obligation would result in the right or obligation of a Slovenian Obligor and/or its management to demand reimbursement for any Slovenian Obligor Obligation pursuant to Article 545 of the Luxembourg Company Slovenian Companies Act, and (y) if the fulfilment of the obligation by its controlling company (obvladujoča družba) to reimburse a Slovenian Obligor becomes uncertain or the assumption or performance of the Slovenian Obligor Obligation referred to under previous item (y) by a Slovenian Obligor and/or its management would be unlawful (protipravno) in the context of Article 545 of the Slovenian Companies Act and associated rules and legal concepts, an amount equal to the largest amount that would not be unlawful (protipravna) under the rules set out under this item (4) (including the reduction for any Tax that would be payable under such transaction by a Slovenian Obligor (Tax gross-down)); and/or
(5) if due to a change in the laws or regulations of 10th Augustgeneral application entering into force after the date of this Accession Deed, 1915a Slovenian Obligor Obligation would directly violate any mandatory provision of such future law or regulation, as amendedan amount equal to the largest amount that would not violate or contradict the rules set out in this item (5), whether directly (Slovenian Capital Maintenance Rules and any rules set out under preceding sub-paragraphs (1) through (5) of this paragraph (D), collectively “Slovenian Limitation Rules”), provided, in each case (1), (2), (3), (4) and/or (5) of this paragraph (D), that the relevant Slovenian Guarantor shall use reasonable efforts to overcome the respective limitations.
(E) If and to the extent the assumption or indirectly, for enforcement of any Slovenian Obligor Obligation results in a material risk to any officer of a Slovenian Obligor of civil liability or criminal responsibility because of a violation of Slovenian Limitation Rules and the subscription for, management of a Slovenian Obligor can demonstrate that the assumption or the acquisition or the refinancing enforcement of the acquisition ofrespective Slovenian Obligor Obligation would result in such risk, its own sharessuch liability shall be reduced to the maximum amount then permissible to be paid without triggering such risk; and
paragraph (iiD) shall be limited, at any time, to an aggregate amount not exceeding the greater of:
(A) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) as reflected in its then most recent annual accounts approved at a general meeting of its shareholders; and
(B) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) immediately following Completion. For the avoidance of doubt, the obligations and liabilities of each Guarantor under this Clause 18 (Guarantee) shall include a guarantee of the liabilities to the Security Agent as joint creditor together with each of the other Senior Finance Parties under Clause 19.13 (Security Agent as Joint and Several Creditor and Representative) of the Intercreditor Agreementapply mutatis mutandis.
Appears in 1 contract
Sources: Multicurrency Revolving Facility Agreement (Endava PLC)
Guarantee Limitations. (a) Each of This guarantee and indemnity does not apply to any liability to the parties to this Agreement hereby confirms extent that it is would result in the intention of all such persons that relevant Guarantor breaching any applicable law and/or regulation (including any financial assistance laws). In addition, the obligations of each Guarantor organised under the laws of any state of the United States of America (MGO Group Member that grants a “U.S. Guarantor”) guarantee and indemnity under this Clause 18 (Guarantees) do not constitute a fraudulent transfer or conveyance for the purposes of any proceeding of the type referred to in Clause 17.1(f), (g), (h), (i), (j) or (k) (Events of Default) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors, the United States Uniform Fraudulent Conveyance Act, the United States Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to the obligations of a U.S. Guarantor under this Clause 18 (Guarantees). To effect the foregoing intention, the Facility Agent, the Arranger Group, the Banks and the Guarantors hereby irrevocably agree that the obligations of each U.S. Guarantor at any time 19 by entering into an Accession Deed shall be limited subject to the maximum amount as will result any limitations set out in the obligations of such U.S. Guarantor under this Clause 18 that Accession Deed (Guarantees) not constituting a fraudulent transfer or conveyanceif any).
(b) The Each US Guarantor acknowledges that it will receive valuable direct or indirect benefits as a result of the transactions financed by the Secured Documents.
(c) Notwithstanding anything to the contrary contained herein or in any other Secured Document, each Finance Party and each Hedge Counterparty agrees that the maximum liability of each Guarantor incorporated under the laws of Luxembourg under this Clause 18 (Guarantee) and under any indemnities contained elsewhere in this Agreement:
(i) shall not include any obligation which, if incurred, would constitute the provision of financial assistance (as defined in article 49-6 of the Luxembourg Company Act of 10th August, 1915, as amended), whether directly or indirectly, for the subscription for, or the acquisition or the refinancing of the acquisition of, its own shares; and
(ii) shall be limited, at any time, to an aggregate amount not exceeding the greater of:
(A) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) as reflected in its then most recent annual accounts approved at a general meeting of its shareholders; and
(B) the Luxembourg Guarantor’s net worth (“capitaux propres”) (as referred to in article 214 of the Luxembourg Company Act of 10th August, 1915, as amended) immediately following Completion. For the avoidance of doubt, the obligations and liabilities of each US Guarantor under this Clause 18 (Guarantee) 19 shall include a guarantee of the liabilities in no event exceed an amount equal to the Security Agent as joint creditor together with each of greatest amount that would not render such US Guarantor's obligations hereunder and under the other Senior Finance Parties Secured Documents subject to avoidance under Clause 19.13 US Bankruptcy Law or to being set aside, avoided or annulled under any Fraudulent Transfer Law, in each case after giving effect (Security Agent i) to all other liabilities of such US Guarantor, contingent or otherwise, that are relevant under such Fraudulent Transfer Law (specifically, excluding, however, any liabilities of such US Guarantor in respect of intercompany indebtedness to any Obligor to the extent that such Financial Indebtedness would be discharged in an amount equal to the amount paid by such US Guarantor hereunder without duplication of any amounts paid by any other person) and (ii) to the value as Joint and Several Creditor and Representativeassets of such US Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Law) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such US Guarantor pursuant to (A) applicable law or (B) any other agreement providing for an equitable allocation among such US Guarantor and the Intercreditor Agreementother Obligors of obligations arising under this Agreement or other guarantees of such obligations by such parties.
Appears in 1 contract
Sources: Mgo Facility Agreement