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• Assignment Clause

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Assignment clause defined.

Assignment clauses are legally binding provisions in contracts that give a party the chance to engage in a transfer of ownership or assign their contractual obligations and rights to a different contracting party.

In other words, an assignment clause can reassign contracts to another party. They can commonly be seen in contracts related to business purchases.

Here’s an article about assignment clauses.

Assignment Clause Explained

Assignment contracts are helpful when you need to maintain an ongoing obligation regardless of ownership. Some agreements have limitations or prohibitions on assignments, while other parties can freely enter into them.

Here’s another article about assignment clauses.

Purpose of Assignment Clause

The purpose of assignment clauses is to establish the terms around transferring contractual obligations. The Uniform Commercial Code (UCC) permits the enforceability of assignment clauses.

Assignment Clause Examples

Examples of assignment clauses include:

• Example 1 . A business closing or a change of control occurs
• Example 2 . New services providers taking over existing customer contracts
• Example 3 . Unique real estate obligations transferring to a new property owner as a condition of sale
• Example 4 . Many mergers and acquisitions transactions, such as insurance companies taking over customer policies during a merger

Here’s an article about the different types of assignment clauses.

Assignment Clause Samples

Sample 1 – sales contract.

Assignment; Survival .  Neither party shall assign all or any portion of the Contract without the other party’s prior written consent, which consent shall not be unreasonably withheld; provided, however, that either party may, without such consent, assign this Agreement, in whole or in part, in connection with the transfer or sale of all or substantially all of the assets or business of such Party relating to the product(s) to which this Agreement relates. The Contract shall bind and inure to the benefit of the successors and permitted assigns of the respective parties. Any assignment or transfer not in accordance with this Contract shall be void. In order that the parties may fully exercise their rights and perform their obligations arising under the Contract, any provisions of the Contract that are required to ensure such exercise or performance (including any obligation accrued as of the termination date) shall survive the termination of the Contract.

Reference :

Security Exchange Commission - Edgar Database,  EX-10.29 3 dex1029.htm SALES CONTRACT , Viewed May 10, 2021, <  https://www.sec.gov/Archives/edgar/data/1492426/000119312510226984/dex1029.htm >.

Sample 2 – Purchase and Sale Agreement

Assignment . Purchaser shall not assign this Agreement or any interest therein to any Person, without the prior written consent of Seller, which consent may be withheld in Seller’s sole discretion. Notwithstanding the foregoing, upon prior written notice to Seller, Purchaser may designate any Affiliate as its nominee to receive title to the Property, or assign all of its right, title and interest in this Agreement to any Affiliate of Purchaser by providing written notice to Seller no later than five (5) Business Days prior to the Closing; provided, however, that (a) such Affiliate remains an Affiliate of Purchaser, (b) Purchaser shall not be released from any of its liabilities and obligations under this Agreement by reason of such designation or assignment, (c) such designation or assignment shall not be effective until Purchaser has provided Seller with a fully executed copy of such designation or assignment and assumption instrument, which shall (i) provide that Purchaser and such designee or assignee shall be jointly and severally liable for all liabilities and obligations of Purchaser under this Agreement, (ii) provide that Purchaser and its designee or assignee agree to pay any additional transfer tax as a result of such designation or assignment, (iii) include a representation and warranty in favor of Seller that all representations and warranties made by Purchaser in this Agreement are true and correct with respect to such designee or assignee as of the date of such designation or assignment, and will be true and correct as of the Closing, and (iv) otherwise be in form and substance satisfactory to Seller and (d) such Assignee is approved by Manager as an assignee of the Management Agreement under Article X of the Management Agreement. For purposes of this Section 16.4, “Affiliate” shall include any direct or indirect member or shareholder of the Person in question, in addition to any Person that would be deemed an Affiliate pursuant to the definition of “Affiliate” under Section 1.1 hereof and not by way of limitation of such definition.

Security Exchange Commission - Edgar Database,  EX-10.8 3 dex108.htm PURCHASE AND SALE AGREEMENT , Viewed May 10, 2021, < https://www.sec.gov/Archives/edgar/data/1490985/000119312510160407/dex108.htm >.

Sample 3 – Share Purchase Agreement

Assignment . Neither this Agreement nor any right or obligation hereunder may be assigned by any Party without the prior written consent of the other Parties, and any attempted assignment without the required consents shall be void.

Security Exchange Commission - Edgar Database,  EX-4.12 3 dex412.htm SHARE PURCHASE AGREEMENT , Viewed May 10, 2021, < https://www.sec.gov/Archives/edgar/data/1329394/000119312507148404/dex412.htm >.

Sample 4 – Asset Purchase Agreement

Assignment . This Agreement and any of the rights, interests, or obligations incurred hereunder, in part or as a whole, at any time after the Closing, are freely assignable by Buyer. This Agreement and any of the rights, interests, or obligations incurred hereunder, in part or as a whole, are assignable by Seller only upon the prior written consent of Buyer, which consent shall not be unreasonably withheld. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

Security Exchange Commission - Edgar Database,  EX-2.1 2 dex21.htm ASSET PURCHASE AGREEMENT , Viewed May 10, 2021, < https://www.sec.gov/Archives/edgar/data/1428669/000119312510013625/dex21.htm >.

Sample 5 – Asset Purchase Agreement

Assignment; Binding Effect; Severability

This Agreement may not be assigned by any party hereto without the other party’s written consent; provided, that Buyer may transfer or assign in whole or in part to one or more Buyer Designee its right to purchase all or a portion of the Purchased Assets, but no such transfer or assignment will relieve Buyer of its obligations hereunder. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors, legal representatives and permitted assigns of each party hereto. The provisions of this Agreement are severable, and in the event that any one or more provisions are deemed illegal or unenforceable the remaining provisions shall remain in full force and effect unless the deletion of such provision shall cause this Agreement to become materially adverse to either party, in which event the parties shall use reasonable commercial efforts to arrive at an accommodation that best preserves for the parties the benefits and obligations of the offending provision.

Security Exchange Commission - Edgar Database,  EX-2.4 2 dex24.htm ASSET PURCHASE AGREEMENT , Viewed May 10, 2021, < https://www.sec.gov/Archives/edgar/data/1002047/000119312511171858/dex24.htm >.

Common Contracts with Assignment Clauses

Common contracts with assignment clauses include:

• Real estate contracts
• Sales contract
• Asset purchase agreement
• Purchase and sale agreement
• Bill of sale
• Assignment and transaction financing agreement

Assignment Clause FAQs

Assignment clauses are powerful when used correctly. Check out the assignment clause FAQs below to learn more:

What is an assignment clause in real estate?

Assignment clauses in real estate transfer legal obligations from one owner to another party. They also allow house flippers to engage in a contract negotiation with a seller and then assign the real estate to the buyer while collecting a fee for their services. Real estate lawyers assist in the drafting of assignment clauses in real estate transactions.

What does no assignment clause mean?

No assignment clauses prohibit the transfer or assignment of contract obligations from one part to another.

What’s the purpose of the transfer and assignment clause in the purchase agreement?

The purpose of the transfer and assignment clause in the purchase agreement is to protect all involved parties’ rights and ensure that assignments are not to be unreasonably withheld. Contract lawyers can help you avoid legal mistakes when drafting your business contracts’ transfer and assignment clauses.

ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

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• assignments basic law

Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

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When Is An "Assignment" Clause Worth Fighting For?

Contributor

Q. My small business is negotiating with a vendor who has asked to remove our contract’s “assignment” clause entirely. Is it worth the time to argue over whether to include an assignment clause?

A.  First, it’s important to understand the purpose of the assignment clause. “Assignment” occurs when a party transfers its rights and obligations under a contract to another party. Generally, unless the parties have agreed otherwise, each can assign its rights and obligations freely.

Article 2 of the Uniform Commercial Code, a set of laws governing the sale of goods that has been adopted by 49 states, including New Hampshire, provides that a party can freely assign its rights and obligations to another unless such assignment would materially change the duties of the other party, burden the other party, or decrease the other party’s chances of receiving performance under the contract.

If your vendor eliminates the assignment clause and no agreement on the topic is provided in the contract, your vendor will be free to transfer its obligations to another person or company without giving you notice or obtaining your approval.

Parties do have the ability, however, to mutually decide against the free assignability of a contract and this is often accomplished through an assignment clause. An assignment clause spells out which, if any, of a party’s obligations and rights under a contract are able to be assigned, or transferred, to another party. Free assignability and no assignability are not the only options, and you and your vendor can negotiate terms for assignment that are amenable to both of you.

For example, some clauses allow for assignment with the other party’s consent, meaning, the vendor would have to obtain your approval of the assignee prior to assigning any of its rights or obligations under the contract. Other times, assignment clauses allow for free assignment only to certain persons or entities, such as the vendor’s subsidiaries and affiliates, provided that the vendor gives you notice of such permitted assignment. Another option is to allow for assignment by the vendor provided that it guaranties the assignee’s performance.

Consider potential situations in which the vendor may want to assign the contract and determine whether it’s important to you to have control over assignment in each instance.

Consider discussing situations in which it may be important for the vendor to have freedom of assignment and, instead of removing the provision all together, specify those situations in which assignment is permitted, list those rights or obligations that are assignable, and consider whether, when assignment is permitted, notice, consent or a guaranty will be required.

Published in the Union Leader (2/25/2019)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Corporate/Commercial Law

United states.

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Understanding an assignment and assumption agreement

Need to assign your rights and duties under a contract? Learn more about the basics of an assignment and assumption agreement.

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by   Belle Wong, J.D.

Belle Wong, is a freelance writer specializing in small business, personal finance, banking, and tech/SAAS. She ...

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Updated on: November 24, 2023 · 3 min read

The assignment and assumption agreement

The basics of assignment and assumption, filling in the assignment and assumption agreement.

While every business should try its best to meet its contractual obligations, changes in circumstance can happen that could necessitate transferring your rights and duties under a contract to another party who would be better able to meet those obligations.

If you find yourself in such a situation, and your contract provides for the possibility of assignment, an assignment and assumption agreement can be a good option for preserving your relationship with the party you initially contracted with, while at the same time enabling you to pass on your contractual rights and duties to a third party.

An assignment and assumption agreement is used after a contract is signed, in order to transfer one of the contracting party's rights and obligations to a third party who was not originally a party to the contract. The party making the assignment is called the assignor, while the third party accepting the assignment is known as the assignee.

In order for an assignment and assumption agreement to be valid, the following criteria need to be met:

• The initial contract must provide for the possibility of assignment by one of the initial contracting parties.
• The assignor must agree to assign their rights and duties under the contract to the assignee.
• The assignee must agree to accept, or "assume," those contractual rights and duties.
• The other party to the initial contract must consent to the transfer of rights and obligations to the assignee.

A standard assignment and assumption contract is often a good starting point if you need to enter into an assignment and assumption agreement. However, for more complex situations, such as an assignment and amendment agreement in which several of the initial contract terms will be modified, or where only some, but not all, rights and duties will be assigned, it's a good idea to retain the services of an attorney who can help you draft an agreement that will meet all your needs.

When you're ready to enter into an assignment and assumption agreement, it's a good idea to have a firm grasp of the basics of assignment:

• First, carefully read and understand the assignment and assumption provision in the initial contract. Contracts vary widely in their language on this topic, and each contract will have specific criteria that must be met in order for a valid assignment of rights to take place.
• All parties to the agreement should carefully review the document to make sure they each know what they're agreeing to, and to help ensure that all important terms and conditions have been addressed in the agreement.
• Until the agreement is signed by all the parties involved, the assignor will still be obligated for all responsibilities stated in the initial contract. If you are the assignor, you need to ensure that you continue with business as usual until the assignment and assumption agreement has been properly executed.

Unless you're dealing with a complex assignment situation, working with a template often is a good way to begin drafting an assignment and assumption agreement that will meet your needs. Generally speaking, your agreement should include the following information:

• Identification of the existing agreement, including details such as the date it was signed and the parties involved, and the parties' rights to assign under this initial agreement
• The effective date of the assignment and assumption agreement
• Identification of the party making the assignment (the assignor), and a statement of their desire to assign their rights under the initial contract
• Identification of the third party accepting the assignment (the assignee), and a statement of their acceptance of the assignment
• Identification of the other initial party to the contract, and a statement of their consent to the assignment and assumption agreement
• A section stating that the initial contract is continued; meaning, that, other than the change to the parties involved, all terms and conditions in the original contract stay the same

In addition to these sections that are specific to an assignment and assumption agreement, your contract should also include standard contract language, such as clauses about indemnification, future amendments, and governing law.

Sometimes circumstances change, and as a business owner you may find yourself needing to assign your rights and duties under a contract to another party. A properly drafted assignment and assumption agreement can help you make the transfer smoothly while, at the same time, preserving the cordiality of your initial business relationship under the original contract.

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Assignment and other dealings

• Using your device

What does it do and why do I need it?

An assignment clause aims to control who performs a contract and who can receive benefits under the contract. It does not, however, mean that a party’s contractual obligations are transferred over, it simply means that the performance of such obligations can be delegated. This means that burdens cannot be assigned as a matter of law, but benefits can. 

Including such a clause is important if you wish to control who receives the benefit of your performance if you are the supplier, or if you are a customer, control who carries out the contract for you. This may be important to you, for instance, if you do not wish to deliver work to your competitors or you do not want a particular person in your supply chain.

If the contract is silent on assignment and other dealings, a party can normally assign, mortgage, charge or declare a trust over its rights under the contract, without the other party’s consent and use a subcontractor to perform (but not transfer) its contractual duties. In some cases, however, a restriction on subcontracting may be implied where personal performance is required for example.

In light of this, if the parties wish to restrict such abilities, they should do this expressly. Please note, however, a prohibition on assignment has no effect on assignment of a right to receive payment, this applies to many contracts for supply of goods, services or intangibles made between UK businesses on or after 31 December 2018. 

What should I look out for?

• Effect of an assignment breach - in most cases, a breach of an assignment restriction in the main contract may trigger termination rights or other remedies, may be valid between the assignor and assignee and it does not bind the original promisor who remains liable to the original promisee (the party receiving the benefit).
• Effect of a restriction of other dealings breach - if the wording specifically carves out restrictions on ‘mortgages, charges or trust of rights’ then it should be effective to stop the contracting party holding its rights in trust for a non-party. However, a restriction on an assignment/transfer alone might not have this effect. On the contrary, in relation to a subcontract, if a restriction was in place and there has been a breach, the subcontract is normally still valid, but the other party to the main contract may not be obliged to accept or pay for the subcontractor’s performance.
• Novation - if a party wants to actually transfer its obligations under the contract, as opposed to delegating their performance, it will need to do so by way of novation.
• Subcontracting of processing personal data - if, as part of subcontracting its obligations generally, the assigning/subcontracting party is subcontracting obligations to process personal data, it should note that the GDPR imposes conditions on sub-processing. The main contractor should check the data processing provisions and subcontracting provisions in the contract for provisions relating to sub-processing.
• Indemnities - in relation to subcontracting duties, the main contractor remains liable to the continuing party for the performance of any part of the contract that is still to be fulfilled. Therefore, a main contractor will therefore generally ask their subcontractor for an indemnity against any breach or failure to perform the contract. The indemnity will not usually cover liabilities incurred before the subcontracting took effect.

If you have any queries, please do not hesitate to contact Ben Taylor .

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You can trust the market knowledge of lawyers who understand your sector, and the pragmatic advice from people who take the time to get to know your business. Expect excellent client service, with close access to partners and experts.

Consent to Assignment: Everything You Need to Know

Consent to assignment refers to allowing a party of a contract (the assignor) to assign a contract and move the obligations to another party (the assignee). 3 min read updated on February 01, 2023

Consent to assignment refers to allowing a party of a contract to assign a contract and move the obligations to another party. The party of the existing contract, known as the assignor, will pass on the contract to another party, known as the assignee. The goal is for the assignee to take over the rights and obligations of the contract. For a contract to be assigned, the other party must be aware of what is happening.

Contract Assignments

The assignment of a contract differs depending on the type of contract and the language in the original agreement. Some contracts contain a clause that doesn't allow assignment at all, while other contracts have clauses that require the other party to consent before assignment can be finalized.

Consider the following scenario. A business owner contracts with a computer company to have a processor delivered every time a new model is released. The computer company assigns the business owner's contract to another provider. As long as the business owner is aware of the changes and still receives the processors as scheduled, his contract is now with the new computer company.

However, assigning a contract doesn't always exempt the assignor from their duties and responsibilities. Some contracts include a clause that states that even if the agreement is assigned to another party, the original parties guarantee that the terms of the contract will be fulfilled.

Unenforceable Assignments

There are a number of situations where a contract assignment won't be enforced , including:

• The contract has an anti-assignment clause that can stop or invalidate any assignments.
• The assignment changes the nature of the contract. An assignment that changes what is expected or impacts the performance of the contract isn't allowed. This also applies if the assignment lowers the value one party will receive or adds risk to the deal that the other party didn't originally agree to.
• The assignment is against the law. In some cases, laws or public policies don't allow assignment. Many states forbid employees to assign future wages. The federal government doesn't allow the assignment of particular claims against the government. Some assignments violate public policy. For example, a personal injury claim cannot be assigned because it could lead to litigation against a party who was not responsible for the injury.

Delegation vs. Assignment

It is common for a party to sign a contract and have someone else actually fulfill his duties and do the work required by the contract. However, some contracts can't be delegated, such as when a party agrees to service done by a particular person or company. If a company contracted with Oprah Winfrey to be a keynote speaker, Oprah wouldn't be permitted to delegate her performance duties to anyone else.

If both parties agree that the work can't be delegated, they should include specific language in the original contract. This can be as simple as a clause that states, “Neither party shall delegate or assign its rights.” Both parties should agree to this clause.

How to Assign a Contract

Assigning a contract is a three-step process. First, check to see if the contract has an anti-assignment clause or if there are limitations around assignments. Sometimes clauses are straightforward with language like, “This agreement may not be assigned,” and while other times, the language is less obvious and hidden in another clause. If there is language in the contract that states it can't be assigned, the other party must consent to an assignment before you can proceed.

Second, the parties must execute an assignment . Create an agreement that transfers the rights and obligations of one party to the assignee.

Third, notify the other party of the contract. Once the contract rights have been assigned to the new party, you should notify the other party of the original contract. Providing written notice removes you from being responsible for any part of the contract unless there is language in the contract that says differently or the assignment is illegal.

Anti-Assignment Clause

As you are negotiating and writing a contract, consider whether you want the contract to be able to be assigned. If you don't want assignment to be a legally viable option, that needs to be clearly stated in the contract.

If you need help with consent to assignment, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.

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Federal Circuit Reversal in Assignment Clause Case Highlights Importance of Contract Language in Intellectual Property Ownership

Contributors

Jeffrey S. Whittle

Karthika Perumal, Ph.D.

Samuel A. Savanich

By Jeffrey Whittle, CLP ; Karthika Perumal, Ph.D., CLP ; & Sam Savanich, CLP-A

In a split opinion issued Tuesday , and based on language in an assignment clause of a contract, the Federal Circuit overturned a district court's summary judgment that Core Optical lacked standing to sue Nokia, Cisco, and ADVA for infringement.

The case, involving a fiber optic patent, centers on the interpretation of the phrase "entirely on my own time" within an assignment clause of the inventor's contractual agreement with his former employer, TRW Inc.

Nokia, Cisco, and ADVA contended that Dr. Mark Core's assignment of his patent rights to Core Optical was invalid because these rights allegedly had been automatically assigned to Dr. Core's employer, TRW, at the time of the invention. The inventor's contract with TRW stipulated that any inventions developed during work hours were to be assigned to the company, while inventions developed entirely on his “own time” remained Dr. Core’s property.

Initially, the lower court granted Nokia and the defendants summary judgment, ruling that the invention was developed as part of the Dr. Core’s research, funded by TRW, and was at least in part “TRW time” and not “entirely” Dr. Core’s “own time.” Therefore, this court concluded that the patent was automatically assigned to TRW, and Core Optical, Dr. Core’s company, lacked standing to sue.

The Federal Circuit majority, however, decided on appeal that it was not clear if the Ph.D. research conducted by Dr. Core constituted the inventor's own time. On one hand, Dr. Core was free to use particular hours or days for his research with no accountability to TRW; and, on the other hand, he worked on projects connected to TRW’s business on TRW-funded fellowship, with reporting obligations to TRW. Therefore, the Federal Circuit vacated the judgment and remanded the case back to the district court for further proceedings, thereby allowing Dr. Core to proceed with his patent infringement lawsuit.

The majority opinion noted, “[b]oth Core Optical’s and Nokia's interpretations of how the years-long, TRW-funded research should be treated under the 1990 invention agreement are plausible based on the undisputed facts presented. However, which interpretation prevails has not been determined, acknowledging that the contract language does not have an unambiguous meaning when applied to these facts.”

In dissent, U.S. Circuit Court Judge Haldane Robert Mayer argued that the lower court was correct in ruling that the inventor did not develop the fiber optic patent on his own time.

This majority decision underscores the complexities and nuances surrounding intellectual property rights and the importance of clear contractual terms regarding intellectual property issues, especially for intellectual property developed by an individual during non-traditional employment, such as employees permitted to pursue research or consulting projects. Care should be taken when drafting assignment and other intellectual property related language to reduce risk of a finding of ambiguity as in this instance.

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The first amendment, interpretation & debate, the guarantee clause, matters of debate, common interpretation, the guarantee clause in exile.

by Gabriel J. Chin

Edward L. Barrett Jr. Chair of Law, Martin Luther King, Jr. Professor of Law, and Director of Clinical Legal Education at the University of California - Davis School of Law

by Erin M. Hawley

Associate Professor of Law, University of Missouri School of Law

The Guarantee Clause requires the United States to guarantee to the states a republican form of government, and provide protection from foreign invasion and domestic violence. Although rarely formally invoked by Congress, the President, or the courts, there is some consensus on what it means.

At its core, the Guarantee Clause provides for majority rule. A republican government is one in which the people govern through elections. This is the constant refrain of the Federalist Papers . Alexander Hamilton, for example, put it this way in The Federalist No. 57 : “The elective mode of obtaining rulers is the characteristic policy of republican government.”

Thus, the Guarantee Clause imposes limitations on the type of government a state may have. The Clause requires the United States to prevent any state from imposing rule by monarchy, dictatorship, aristocracy, or permanent military rule, even through majority vote. Instead, governing by electoral processes is constitutionally required.

However, the Guarantee Clause does not speak to the details of the republican government that the United States is to guarantee. For example, it is difficult to imagine that those who enacted the Constitution believed the Guarantee Clause would be concerned with state denial of the right to vote on the basis of race, sex, age, wealth, or property ownership. Article I, Section 2 of the Constitution left voting qualifications in the hands of the states, although state authority in this area has been altered by subsequent amendments.

The Guarantee Clause also does not require any particular form of republican governmental structure. Thus, in cases such as Pacific States Telephone & Telegraph Co. v. Oregon (1912), the Supreme Court has refused to invalidate various forms of direct democracy permitted by state law, such as popular initiative and referendum, on the ground that they violate the Guarantee Clause. While these decisions were often on jurisdictional grounds, they are consistent with James Madison’s observation in The Federalist No. 43 that “the States may choose to substitute other republican forms.”

It is also clear that federal actions regarding states, authorized by other parts of the Constitution, do not ordinarily violate the Guarantee Clause, even if those federal actions prevent a particular state decision from going into effect. Under the Supremacy Clause, federal law will sometimes supersede otherwise valid state laws.

The question whether a Guarantee Clause challenge may be heard in federal court—that is, whether it is judicially enforceable—is a difficult one. In Luther v. Borden (1849), the Supreme Court held questions involving the Guarantee Clause nonjusticiable, meaning that any remedy for a violation would lie with Congress or the President, not the federal judiciary. Nearly one hundred years later, the Court sweepingly declared that the guarantee of a republican form of government cannot be challenged in court. Colegrove v. Green (1946).

More recently, however, the Supreme Court has left the door open to a Guarantee Clause challenge, intimating that the justiciability of such a claim must be decided on a case-by-case basis. Nevertheless, because protection against invasion or domestic violence is normally available only from Congress and the President, the structure of this section suggests that the political branches have at least the primary duty to carry out its obligations.

There is a serious claim that the United States failed to carry out its duty under the Guarantee Clause in the context of African American suffrage. The Supreme Court held that African Americans were protected by the Clause after the passage of the Reconstruction Amendments. In Texas v. White (1891) the Court explained: “[t]he new freemen necessarily became part of the people, and the people still constituted the State . . . . And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty.”

Importantly, after the Civil War, African Americans were a majority of the population in Louisiana, Mississippi, and South Carolina, and 40 percent or more in Alabama, Florida, Georgia, and Virginia. If majority rule and political freedom had prevailed in those seven states, the political power and influence African Americans enjoyed during Reconstruction would likely have continued for decades, or permanently. 

However, as is well-known, African Americans were systematically disenfranchised, most vigorously in places where they were majorities, or could combine with other voters to become majorities. Mississippi was a leader in disenfranchising African Americans. In 1896, the Mississippi Supreme Court explained how this happened in Ratliff v. Beale :

Our unhappy state had passed in rapid succession from civil war through a period of military occupancy, followed by another, in which the control of public affairs had passed to a recently enfranchised race, unfitted by educational experience for the responsibility thrust upon it. This was succeeded by a semimilitary, semicivil uprising, under which the white race, inferior in number, but superior in spirit, in governmental instinct, and in intelligence, was restored to power. The anomaly was then presented of a government whose distinctive characteristic was that it rested upon the will of the majority, being controlled and administered by a minority of those entitled under its organic law to exercise the electoral franchise.

The Mississippi Constitutional Convention of 1890 solved this problem:

Within the field of permissible action under the limitations imposed by the federal constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race.

See United States v. Mississippi (1965). Disenfranchisement of African Americans, the perpetrators themselves recognized, resulted in the establishment of minority rule.

Accordingly, the United States failed to guarantee a republican form of government in many former Confederate states in the period after Reconstruction and before the passage of the Voting Rights Act of 1965. The legislative history of a number of acts of Congress including the Fifteenth Amendment itself, recognized the conflict between the principle of majority rule enshrined in the Guarantee Clause and the reality of systematic disenfranchisement of African Americans.

It is unlikely that anyone would bother to disenfranchise a political opponent unless the outcome of the election might be at stake. In a highly polarized nation, there remain incentives for governmental actors, political parties, or others, to find ways to obstruct registration or casting of ballots to turn minorities of eligible voters into winners of elections. Congress does not have a general power to police and purify state elections, or to install governmental structures it considers desirable. However, the United States has a Guarantee Clause responsibility to step in when the principle of majority rule is threatened.   

Under the Guarantee Clause, the states have a limited ability to define the franchise. States may, for example, set reasonable residency requirements for state and local elections and deny convicted felons the right to vote. Thus, in Oregon v. Mitchell (1970), the Supreme Court held that, while Congress could set the voting age for federal elections, it did not have that power when it came to state and local elections. This case suggests that the Guarantee Clause does not provide a general federal power to police elections. The ability of states to establish the franchise has been narrowed considerably by the Fifteenth (no denial of right to vote based on race), Nineteenth (no denial of right to vote based on sex), Twenty-Fourth (no poll tax), and Twenty-Sixth (overturning Oregon v. Mitchell , and establishing a nationwide minimum voting age of eighteen) Amendments, and by Congress’ right to enforce those Amendments pursuant to legislation.

The text of the Guarantee Clause directs the United States to “guarantee to every State in this Union a Republican Form of Government.” This language acts not only as a prohibition on the type of government a state may have, but also guarantees to them sufficient autonomy to govern according to popular will. The Guarantee Clause thus acts as a limited check on the federal government’s ability to interfere with state autonomy. The federal government may not alter the form or functioning of a state government qua government. Other constitutional amendments, however, may circumscribe a state’s ability to establish its governance structures. Election districts can be redrawn, for instance, under the Fourteenth and Fifteenth Amendments.

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What is an Anti-Assignment Clause?

When business owners are negotiating contracts to gear up for the sale of their business, they are rightly concerned with key questions such as the sale price for the business including assets such as how much the sale will cost them and what happens if something goes wrong.  At the end of the contracts, there are usually several pages of type that usually look like boilerplate. Inside those clauses is usually something called an assignment clause, or more accurately, an anti-assignment clause.

It’s one of those clauses that everyone glosses over – after all, it’s just standard legal text, right?

For a business owner hoping to sell their business, an anti-assignment clause can dissuade potential buyers and play a crucial role in the selling price of a business.  If this sounds familiar and you’re in the process of negotiating the merger or acquisition of your business, read on – we’ve put together a practical guide to anti-assignment clauses and what to look out for.

Looking for legal help? feel free to get in touch with our  commercial lawyers  for matters related to contracts.

What is an assignment clause?

The anti-assignment clause states that neither party can transfer or assign the agreement without the consent of the other party. On a basic level, that makes sense – after all, if you sign a contract with a specific party, you don’t expect to be entering into an agreement with a third party you didn’t intend to be.

However, when you sell your business, you will want to transfer ownership of those contracts to the buyer. If your contracts all contain an anti-assignment clause, they effectively restrict you from transferring ownership to the interested party. Now, you’re presented with a new challenge altogether – before you can focus on the sale of your business, you must first renegotiate the terms of your contracts with each party.

Language to look out for in anti-assignment clauses

If you’re thinking about selling your business or even have potential buyers interested, it’s better to know in advance if you’ve got anti-assignment clauses in your contracts. There are generally two types of anti-assignment clause to look out for. The first relates to the complete bar on assignment of rights and responsibilities and is typically worded in this way, or similar:

“Neither Party may assign, delegate, or transfer this agreement or any of its rights or obligations under this agreement.”

The second type prevents the transfer of rights or duties without prior written consent of the other party. This will read along the lines of:

 “Neither this agreement nor any right, interest, or obligation herein may be assigned, transferred, or delegated to a third party without the prior written consent of the other party, and whose consent may be withheld for any reason.”

So, where the first prohibits assignment altogether, the second prohibits assignment unless permission is sought in advance. Some clauses may even explicitly state that a change of control such as a merger or acquisition is an assignment. The last thing you want is to cause a dispute by breaching the contract, but if you’ve already agreed to these terms, you’ll have to open a fresh set of negotiations with the contracting party before you sell the company.

Assignment clauses in M&A: what’s the problem?

Due diligence is the bread and butter of any merger or acquisition. Rather than a leap of faith, due diligence ensures the purchase of a business is a calculated decision with minimal risk to the buyer. Typically carried out by specialist lawyers, the process is designed to lift the hood on the target business to determine the valuation of assets and liabilities and identify any glaring issues that could leave the buyer open to risk.

During the due diligence process, the buyer will look through all of the major contracts the business has open, and specifically keep a close eye out for assignment clauses.

Despite the virtual environment that many businesses have been forced to operate in in 2020, most companies will have commercial leases for the premises from which they typically work. Almost all leases have an anti-assignment clause, and this is a perfect example of an instance that is often overlooked by commercial tenants when selling a business which includes a leasehold property.  This transfer of ownership may well be prohibited under an anti-assignment clause so that prior to the sale of the business, you would be required to ask permission from your landlord. The issue here is that the landlord may well see this as the perfect opportunity to renegotiate and secure a better deal for themselves. What’s worse, if they don’t sign off on the transfer, you’ll have an obstruction on your hands that will stand in the way of the sale.

In any case, an unexpected anti-assignment clause usually winds up being a last-minute hitch in the sale, and it never comes at a good time. Whether it delays the sale or obstructs it altogether, overlooking an anti-assignment clause can cost you considerably in an M&A transaction.

What makes anti-assignment clauses enforceable?

Generally speaking, an anti-assignment clause will be enforced by the courts if it was agreed upon by both parties to the contract. Many contracts exclude or qualify the right to assignment – according to the courts, a clause that states that a party to a contract may not assign the benefit of that contract without the consent of the other party is legally effective and will extend to all rights and benefits arising under the contract.

Courts won’t always enforce assignments to which the counterparty did not give permission, even where there is no anti-assignment clause that specifies this provision.

How to negotiate anti-assignment clauses

The best practice for business owners is to be vigilant when negotiating new contracts and ensure that any anti-assignment clauses still allow for the transfer of ownership when they decide to sell the business.

Remember, even though the buyer is purchasing the assets of the business, this usually means that all of the contracts of the business go with it because the business remains intact. Therefore, the best way forward is to negotiate these clauses upfront from the outset of the relationship, so that when you do decide to sell your business, you automatically have permission to transfer the ownership without having to delay the sale by entering into fresh negotiations.

If your agreement does not permit assignments, it’s worth seeking the advice and support of a specialist lawyer who can help protect your interests through negotiation with your counterparty on this point. You may be able to include a provision that allows for assignment of your rights and obligations upon the prior written consent of the other party. Your lawyer will likely advise you to carve out a specific provision to prohibit the counterparty from unreasonably withholding or delaying consent or making it subject to unreasonable conditions – an issue which, if not provided for within the contract, can cause serious delay and disruption to the sale of your business. Further, it may be beneficial to add an extra element to the contract that makes exceptions to the clause for assignments between affiliates.  If you’re planning to sell your business, this would be the right place to carve out an exception within the clause to the change of control via a merger or acquisition.

It’s important to bear in mind that anti-assignment clauses tend to be viewed narrowly by courts, and that there have been several instances whereby anti-assignment clauses have not been enforced since the clause itself did not explicitly state that the assignment of rights, duties or payment would render the contract void or invalid. So, if you’re in the process of negotiating an agreement and wish to protect your interests through the addition of an anti-assignment clause, it’s critical that you include the consequences of assignment within the clause itself and state that assignments would invalidate or be in breach of the contract.

If you do not wish for the counterparty to be able to transfer the legal obligation to perform their duties as stated in the contract to a third party, this must be explicitly stated in one of three ways:

• Specify the need for consent

There’s no need to be unreasonable – you can protect your interests while still giving the counterparty the space to re-negotiate should they wish to assign rights by including a clause that asks for consent.

• Provide an exemption to consent for affiliates, successors or new owners

Ask your lawyer to draft an exception into the clause that permits assignment to affiliates or successors to the counterparty, such as:

“Neither party may assign or delegate this agreement or its rights or obligations under this agreement without the prior written consent of the other party, except that no consent is required (a) for assignment to an entity in which the transferring party will own greater than 50 per cent of the shares or other interests; or (b) in connection with any sale, transfer, or disposition of all or substantially all of its business or assets; provided that no such assignment will relieve an assigning party of its obligations under this agreement. Any assignment or delegation that violates this provision shall be void.”

• Require reasonable consent

Just as you would not wish for consent to be held back from you unreasonably in the renegotiation of contract terms prior to a sale, your assignment clause should make clear that you will not unreasonably withhold or delay consent should the third party request permission to assign their legal obligations. This may read something like this:

 “Neither party may assign or delegate this agreement or its rights or obligations under this agreement without the prior written consent of the other party, whose consent shall not be unreasonably withheld or delayed. Any assignment or delegation that violates this provision shall be void.”

Whatever the circumstances, we strongly recommend calling upon a contract law specialist, whether you’re undergoing due diligence in the run up to an M&A transaction, are considering selling your business or are negotiating new contracts with customers and suppliers. Our lawyers bring in-depth expertise in the area of anti-assignment clauses and will work closely with you to protect your interests and ensure no clauses in your contracts negatively impact the sale of your company.

For a free consultation, get in touch with our team through the contact form below or using our online chat service.

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Guarantee clause samples

Each of RenaissanceRe Finance and RRNAH may offer and sell from time to time senior, subordinated or junior subordinated debt securities, which we will guarantee . The Capital Trust may offer and sell from time to time preferred securities, which we will guarantee .

08/03/2017 (RENAISSANCERE HOLDINGS LTD)

The following summary sets forth the material terms and provisions of the preferred securities guarantee . Because the following summary of certain provisions of the preferred securities guarantee s is not complete, you should refer to the form of preferred securities guarantee and the Trust Indenture Act for more complete information regarding the provisions of the preferred securities guarantee , including the definitions of some of the terms used below. The form of the preferred securities guarantee has been filed as an exhibit to the registration statement of which this prospectus forms a part and is incorporated by reference in this summary. Whenever we refer to particular sections or defined terms of a preferred securities guarantee , such sections or defined terms are incorporated herein by reference. Reference in this summary to preferred securities means the Capital Trust’s preferred securities to which a preferred securities guarantee relates. The Guarantee Trustee will hold the preferred securities guarantee for the benefit of the holders of the Capital Trust’s preferred securities.

Table of Contents • The obligations of the Capital Trust under the preferred securities will be fully and unconditionally guarantee d by us. See “Description of the Trust Preferred Securities Guarantee .” The Capital Trust is not currently subject to the information reporting requirements of the Exchange Act and it is anticipated that it will not become subject to those requirements upon the effectiveness of the registration statement of which this prospectus is a part.

The Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or the Holder of such Security exhaust any right or take any action against the Company or any other Person, the filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged in respect of such Security except by complete performance of the payment obligations contained in such Security and in this Guarantee . This Guarantee shall constitute a guaranty of payment and not of collection. The Guarantor hereby agrees that, in the event of a default in payment of principal, or premium, if any, or interest, if any, on such Security, whether on the Stated Maturity Date, by declaration of acceleration, call for redemption, or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, subject to the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce this Guarantee without first proceeding against the Company.

07/02/2018 (NEXTERA ENERGY INC)

SECTION 2.01 Guarantee . The Guarantor hereby fully and unconditionally guarantee s to each Holder the due and punctual payment of the Guarantee Payments, as and to the extent applicable (without duplication of amounts theretofore paid by the Issuer) when and as the same shall become due and payable, according to the terms of the Preferred Stock as set forth in the Articles of Amendment, regardless of any defense, right of set-off or counterclaim which the Issuer may have or assert. In case of the failure of the Issuer or any successor thereto punctually to pay any such Guarantee Payments, as and to the extent applicable, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, as if such payment were made by the Issuer. The Guarantor’s obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to or for the benefit of the Holders or by payment by the Issuer of such amounts to or for the benefit of the Holders.

SECTION 2.04Enforcement of Guarantee . Any Holder of Preferred Stock may institute a legal proceeding directly against the Guarantor to enforce its rights under this Guarantee Agreement, without first instituting a legal proceeding against the Issuer or any other Person.

SECTION 2.09Form of Guarantee . The Guarantee to be endorsed upon any stock certificate representing Preferred Stock shall be in substantially the form set forth in Exhibit A attached hereto, with such appropriate insertions, omissions, substitutions, and other variations as are required or permitted hereby, and may include such letters, numbers or other marks of identification and legends as may be required to comply with the rules of any securities exchange. The definitive Guarantee to be endorsed upon the Preferred Stock shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner provided that such manner is permitted by the rules of any securities exchange on which the Preferred Stock may be listed. In the alternative, each stock certificate representing Preferred Stock may omit the form of Guarantee set forth in Exhibit A if a legend is included on such stock certificate indicating that a copy of this Guarantee Agreement will be provided upon request.

1. Limited Guarantee . Subject at all times to the terms and conditions set forth in this Limited Guarantee , the Guarantor absolutely and irrevocably guarantee s to the Guarantee d Party the due and punctual performance and discharge of any payment obligations of Parent of 10% (such percentage, the Guarantor’s “Contribution Percentage”) of the aggregate amount of: (a)the Parent Termination Fee if and when due and payable pursuant to Section6.06(c)of the Merger Agreement; (b)the payment obligations of Parent if and when due and payable pursuant to the last two sentences of Section6.15(c)of the Merger Agreement; and (c)the payment obligations of Parent if and when due and payable pursuant to Section6.06(d)of the Merger Agreement (clauses (a)through (c), collectively, the “ Guarantee d Obligations”). Notwithstanding anything to the contrary contained in this Limited Guarantee , in no event shall the maximum aggregate liability of the Guarantor in respect of the Guarantee d Obligations exceed $5,060,191. The Guarantee d Party acknowledges and agrees that the Guarantor (or any of its successors or assignees) shall in no event be required to pay more than $5,060,191 (such limitation on the aggregate liability of the Guarantor for its Guarantee d Obligations being referred to in this Limited Guarantee as the “Cap”). This Limited Guarantee may not be enforced without giving effect to the Cap. The Guarantor shall not be required to pay any amount under this Limited Guarantee if it has funded in full its commitment under its Equity Funding Letter being delivered on the date of this Limited Guarantee (as such amount may be reduced or amended pursuant to such Equity Funding Letter) and the Closing has occurred.

03/06/2020 (CINCINNATI BELL INC)

The Guarantee d Party agrees that in no event shall the Guarantor be required to pay to the Guarantee d Party any amounts in connection with this Limited Guarantee or the Merger Agreement other than as expressly set forth in this Limited Guarantee . All payments under this Limited Guarantee shall be made in lawful money of the United States, in immediately available funds.

2. Other Guarantor. Except in accordance with the immediately following sentence, no claim(s)may be brought against (and no recovery as a result of such claim(s)may be obtained from) the Guarantor under this Limited Guarantee unless such claim(s)have been concurrently brought against the Other Guarantors in connection with the Limited Guarantee s, dated as of the date of this Limited Guarantee (the “Other Limited Guarantee s”), by MIP V (FCC) AIV, L.P. and ASOF Holdings I, L.P. (together, the “Other Guarantors”) in favor of the Company. The immediately preceding sentence shall not apply to the extent that: (i)the bringing of such claim(s)against the Other Guarantors is prohibited or stayed by any applicable Law; or (ii)each Other Guarantor has satisfied in full its obligation under the Other Limited Guarantee . The Company shall not release the Other Guarantors from any obligations under the Other Limited Guarantee s or amend or waive any provision of the Other Limited Guarantee s, except to the extent the Company offers to release the Guarantor under this Limited Guarantee in the same proportion or to amend or waive the provisions of this Limited Guarantee in the same manner. 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 Limited Guarantee s shall be several and not joint.

(a) The Guarantee d Party shall not be obligated to file any claim relating to any Guarantee d Obligation in the event that Parent becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guarantee d Party to so file shall not affect the Guarantor’s obligations under this Limited Guarantee . In the event that any payment to the Guarantee d Party in respect of any Guarantee d Obligation is rescinded or must otherwise be returned to the Guarantor for any reason whatsoever (other than in connection with the valid termination of the Guarantor’s obligations in accordance with Section7 of this Limited Guarantee or in other circumstances where the Guarantor is not liable to make such payment), to the extent such amount is actually returned to the Guarantor, the Guarantor shall remain fully liable under this Limited Guarantee with respect to such Guarantee d Obligation as if such payment to the Guarantee d Party had not been made. This Limited Guarantee is one of payment of the Guarantor’s Contribution Percentage of the Guarantee d Obligations and not collection.

(d) Other than defenses to the payment of the Guarantee d Obligations that are available to the Parent under the Merger Agreement and subject to Section1 of this Limited Guarantee , to the fullest extent permitted by Law, the Guarantor unconditionally and irrevocably waives any and all rights or defenses arising by reason of any applicable Law which would otherwise require any and all notice of the creation, renewal, extension or accrual of any of the Guarantee d Obligations and notice of or proof of reliance by the Guarantee d Party upon this Limited Guarantee or acceptance of this Limited Guarantee (except for notices to be provided to Parent and White& Case LLP in accordance with Section9.02 of the Merger Agreement). Except as provided in Section2 of this Limited Guarantee , when pursuing its respective rights and remedies under this Limited Guarantee against the Guarantor, the Guarantee d Party shall be under no obligation to pursue such rights and remedies it may have against Parent or any other Person for the Guarantee d Obligations or any right of offset with respect to the Limited Guarantee . Except as provided in Section2 of this Limited Guarantee , any failure by the Guarantee d Party to pursue such other rights or remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guarantee d Party of any right of offset, shall not relieve the Guarantor of any liability under this Limited Guarantee , and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guarantee d Party.

6. Subrogation. The Guarantor unconditionally and irrevocably agrees not to exercise any rights that it may now have or after the date of this Limited Guarantee acquire against Parent or any other Person interested in the transactions contemplated by the Merger Agreement, whether or not such claim arises by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency laws) or otherwise prior to the termination of this Limited Guarantee . The rights referred to in the immediately preceding sentence include, without limitation, any right of subrogation, reimbursement, exoneration, contribution, and any right to participate in any claim or remedy of the Guarantee d Party against Parent or such other Person, by reason of the existence, payment, performance, or enforcement of the Guarantee d Obligations under or in respect of this Limited Guarantee , including without limitation, the right to take or receive from Parent or such other Person, directly or indirectly, in case of other property by setoff or in any other manner, payment or security on account of such claim, remedy of right prior to the termination of this Limited Guarantee .

8. Continuing Guarantee . Unless terminated pursuant to the provisions of Section7 of this Limited Guarantee , and subject to the relief of the Guarantor’s obligations in accordance with second paragraph of Section1 of this Limited Guarantee , this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guarantee d Obligations, shall be binding upon the Guarantor and its successors and assignees, and shall inure to the benefit of, and be enforceable by, the Guarantee d Party and its successors and permitted assigns. All obligations to which this Limited Guarantee applies or may apply under the terms of this Limited Guarantee shall be conclusively presumed to have been created in reliance on this Limited Guarantee .

(b) All Actions arising out of or relating to this Limited Guarantee shall be heard and determined in the Court of Chancery of the State of Delaware or, (but only if the Court of Chancery of the State of Delaware declines to accept jurisdiction over any Action) the Superior Court of the State of Delaware (Complex Commercial Division) and any appellate court from any such court (such courts, the “Selected Courts”). The parties to this Limited Guarantee irrevocably: (i)submit to the exclusive jurisdiction and venue of the Selected Courts in any such Action; (ii)waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such Action brought in the Selected Courts; (iii)agree to not contest the jurisdiction of the Selected Courts in any such Action, by motion or otherwise; and (iv)agree to not bring any Action arising out of or relating to this Limited Guarantee in any court other than the Selected Courts, except for Actions brought to enforce the judgment of any such court. The consents to jurisdiction and venue set forth in this Section9.08(b)shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties to this Limited Guarantee . Each party to this Limited Guarantee agrees that service of process upon such party in any Action arising out of or relating to this Limited Guarantee shall be effective if notice is given by Federal Express, UPS, DHL or similar courier service to the address set forth in Section12 of this Limited Guarantee . The parties to this Limited Guarantee agree that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law. Nothing in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.

16. Severability. If any term, condition or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any ruleof Law or public policy: (a)such provision shall be ineffective to the extent, and only to the extent, of such unenforceability or prohibition and shall be enforced to the greatest extent permitted by Law; (b)such unenforceability or prohibition in any jurisdiction shall not invalidate or render unenforceable such provision as applied: (i)to other Persons or circumstances; or (ii)in any other jurisdiction; and (c)such unenforceability or prohibition shall not affect or invalidate any other provision of this Limited Guarantee . This Limited Guarantee may not be enforced with respect to the Guarantee d Obligations without giving effect to the limitations provided in Section1 of this Limited Guarantee and to the provisions of Sections 5 and 7 of this Limited Guarantee . No party to this Limited Guarantee shall assert, and each party shall cause its respective Affiliates not to assert, that this Limited Guarantee or any part of this Limited Guarantee is invalid, illegal or unenforceable.

The spot market price is determined by the COES and is the price at which generation companies sell or buy power on the spot market during each 15-minute period. All injections and withdrawals of electricity are valued at the spot market price of the 15-minute period when they are made. Any generation companies with excess generation over energy sold pursuant to PPAs in each 15-minute interval, sell their excess energy at spot prices to generation companies with lower generation than their contractual obligations under PPAs for that time period. COES defines, on a monthly basis, the amounts that are owed by each generator with a net “buyer” position to generators with a net “seller” position. Generators with a net seller position directly invoice and collect from generators with a net buyer position the amounts liquidated by COES, respectively, not being COES involved in the payment procedure or providing any form of payment guarantee . Distribution companies and regulated consumers cannot purchase power off the grid at spot prices. Distribution companies must enter into agreements that guarantee offtakes of regulated consumers located in their concession areas. Regulated consumers must enter into agreements with distribution companies or, in the case of a large consumer, may contract directly with power generation companies.

04/22/2016 (Kenon Holdings Ltd.)

With relation to the above, Kenon provided a RMB350 million ($54 million) guarantee of this financing agreement to Chery for up to 50% of Chery’s Guarantee . As at December31, 2015, Qoros had drawn down the Facility of RMB700 million ($108 million) with an interest rate of 5.39%. The fair value of the guarantee has been recorded in the financial statements.

Under our guarantee , we have guarantee d the performance of all payment obligations of Goldman Sachs Bank USA under the specified CDs, on the terms set forth in the guarantee agreement. By a “specified CD” we mean a certificate of deposit issued or to be issued by Goldman Sachs Bank USA at any time and from time to time in the past or the future, provided, that, the confirmation of sale of such certificate of deposit, the disclosure statement or any other offering document relating to such certificate of deposit, the instrument governing such certificate of deposit (including any master certificate of deposit), or the books and records of Goldman Sachs Bank USA or its affiliates expressly states that the obligations of Goldman Sachs Bank USA under such certificate of deposit will be entitled to the benefit of our guarantee . Consequently, all other certificates of deposit issued or to be issued by Goldman Sachs Bank USA are not “specified CDs” and are not covered by our guarantee or the guarantee agreement. There is currently no limit on the amount of specified CDs that may be issued by Goldman Sachs Bank USA.

07/10/2017 (GOLDMAN SACHS GROUP INC)

We may use this prospectus in the initial sales of specified CDs covered by our guarantee . In addition, Goldman Sachs& Co. LLC or any of our other affiliates may use this prospectus in market-making transactions in specified CDs covered by our guarantee after their initial sale. Unless the purchaser is informed otherwise in the confirmation of sale, this prospectus is being used in a market-making transaction.

We have filed a registration statement on Form S-3 with the SEC relating to our guarantee . This prospectus is a part of the registration statement and does not contain all of the information in the registration statement. Whenever a reference is made in this prospectus to a contract or other document of The Goldman Sachs Group, Inc., please be aware that the reference is only a summary and that you should refer to the exhibits that are a part of the registration statement for a copy of the applicable contract or other document. You may review a copy of the registration statement at the SEC’s public reference room in Washington, D.C., as well as through the SEC’s Internet site.

The specified CDs will be deposit liabilities of GS Bank, unconditionally and irrevocably guarantee d by The Goldman Sachs Group, Inc. pursuant to our guarantee . Except to the extent FDIC insurance is available from the FDIC, no entity other than GS Bank or The Goldman Sachs Group, Inc. will have any obligation, contingent or otherwise, to make any payments in respect of the specified CDs. Accordingly, GS Bank and The Goldman Sachs Group, Inc. will be dependent on their respective assets and earnings to generate the funds necessary to meet their respective obligations with respect to the specified CDs. If GS Bank’s and The Goldman Sachs Group, Inc.’s assets and earnings are not adequate, GS Bank and The Goldman Sachs Group, Inc. may be unable to make payments in respect of the specified CDs and you could lose that part of your deposit, if any, that is not covered by FDIC insurance.

We have been advised by GS Bank that the specified CDs, together with our guarantee , are being offered from time to time by GS&Co. and may also be offered by any of our other affiliates pursuant to brokerage agreements signed with GS Bank from time to time. GS&Co. and our other affiliates involved in the distribution of the specified CDs, and our guarantee , may be deemed to be “underwriters” as that term is defined in the Securities Act with respect to our guarantee . We refer to GS&Co. and any such other affiliates as the “distributors” in this prospectus.

The notes will be liabilities of GS Bank, unconditionally and irrevocably guarantee d by The Goldman Sachs Group, Inc. pursuant to our guarantee . However, the notes will be general unsecured obligations, not deposit liabilities, of GS Bank and will not be insured by the FDIC. In the event of a liquidation or other resolution of GS Bank, the notes, as general obligations of GS Bank, will generally be subordinated in right of payment to the claims of deposit holders. No entity other than GS Bank or The Goldman Sachs Group, Inc. will have any obligation, contingent or otherwise, to make any payments in respect of the notes. Accordingly, GS Bank and The Goldman Sachs Group, Inc. will be dependent on their respective assets and earnings to generate the funds necessary to meet their respective obligations with respect to the notes. If GS Bank’s and The Goldman Sachs Group Inc.’s assets and earnings are not adequate, GS Bank and The Goldman Sachs Group, Inc. may be unable to make payments in respect of the notes and you could lose your entire investment in your note.

• we or any permitted successor or assignee owns all of the trust common securities of the successor entity and guarantee s the obligations of the successor entity under the successor securities at least to the extent provided by the related guarantee . Notwithstanding the foregoing, an Issuer Trust will not, except with the consent of holders of 100% in liquidation amount of the related capital securities (voting together as a single class), merge, consolidate or amalgamate with or into, be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other entity, or permit any other entity to consolidate, amalgamate or merge with or into or replace it, if such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease would cause the Issuer Trust or the successor entity to be classified as an association taxable as a corporation or as other than a grantor trust for U.S. federal income tax purposes.

We have, through the applicable guarantee , the applicable trust agreement, the applicable series of corresponding subordinated debt securities, the subordinated debt indenture and the applicable expense agreement, taken together, fully, irrevocably and unconditionally guarantee d all of the Issuer Trust’s obligations under the related capital securities. No single document standing alone or operating in conjunction with fewer than all of the other documents constitutes a guarantee . It is only the combined operation of these documents that has the effect of providing a full, irrevocable and unconditional guarantee of an Issuer Trust’s obligations under its capital securities. See “Relationship Among the Capital Securities and the Related Instruments” below.

Our obligations under each expense agreement will be subordinated in right of payment to the same extent as each guarantee . Our obligations under each expense agreement will be subject to provisions regarding amendment, termination, assignment, succession and governing law similar to those applicable to each guarantee .

Payments of distributions and other amounts due on the capital securities (to the extent the related Issuer Trust has funds available for the payment of such distributions) are irrevocably guarantee d by us as described above under “— Guarantee s and Expense Agreements—The Guarantee s”. Taken together, our obligations under each series of corresponding subordinated debt securities, the subordinated debt indenture, the related trust agreement, the related expense agreement, and the related guarantee provide, in the aggregate, a full, irrevocable and unconditional guarantee of payments of distributions and other amounts due on the related capital securities. No single document standing alone or operating in conjunction with fewer than all of the other documents constitutes a guarantee . It is only the combined operation of these documents that has the effect of providing a full, irrevocable and unconditional guarantee of the Issuer Trust’s obligations under the related capital securities. If and to the extent that we do not make payments on any series of corresponding subordinated debt securities, the Issuer Trust will not pay distributions or other amounts due on its related capital securities. The guarantee s do not cover payment of any amounts when the related Issuer Trust does not have sufficient funds to pay such amounts. In such an event, the remedy of a holder of any capital securities is to institute a legal proceeding directly against us pursuant to the terms of the subordinated debt indenture for enforcement of our obligations under the corresponding subordinated debt securities. Our obligations under each guarantee are subordinate and junior in right of payment to all of our senior indebtedness.

Our obligations under the expense agreement are subordinated in right of payment to the same extent as the guarantee . Our obligations under the expense agreement are subject to provisions regarding amendment, termination, assignment, succession and governing law similar to those applicable to the guarantee .

The Trust’s business and affairs are conducted by its trustees, each appointed by us as sponsor of the Trust. The trustees are The Bank of New York Mellon, as the property trustee, or “Property Trustee,” and BNY Mellon Trust of Delaware, as the Delaware trustee, or “Delaware Trustee,” and two or more individual trustees, or “administrative trustees,” who are employees or officers of or affiliated with us. The Property Trustee act as sole trustee under each Trust Agreement for purposes of compliance with the Trust Indenture Act and also acts as trustee under the Guarantee . See “Description of the Guarantee ” below.

The payment of distributions out of money held by a Trust, and payments upon redemption of the APEX or liquidation of the Trust, are guarantee d by us to the extent described under “Description of the Guarantee .” Each Guarantee , when taken together with our obligations under the applicable Trust Agreement, including our obligations to pay costs, expenses, debts and liabilities of the Trust, other than with respect to its Common Securities and APEX, has the effect of providing a full and unconditional guarantee of amounts due on the APEX. The Bank of New York Mellon, as the Guarantee Trustee, holds the Guarantee for the benefit of the holders of the APEX. The Guarantee s do not cover payment of distributions when the Trusts do not have sufficient available funds to pay those distributions.

The following is a brief description of the terms of the Guarantee . The description does not purport to be complete in all respects and is subject to and qualified in its entirety by reference to the Guarantee , copies of which are available upon request from us as described under “Summary — Where can I find additional information?” above.

• equally with any of our other present or future obligations that by their terms rank pari passu with such Guarantee . Each Guarantee constitutes a guarantee of payment and not of collection, which means that the guarantee d party may sue the guarantor to enforce its rights under the Guarantee without suing any other person or entity. Each Guarantee is held for the benefit of the holders of APEX. Each Guarantee will be discharged only by payment of the guarantee payments in full to the extent not paid by the applicable Trust. To the fullest extent permitted by applicable law, each holder of APEX has the right to institute a proceeding directly against us for enforcement of the rights of a holder of Preferred to the extent of an interest in the Preferred corresponding to the aggregate liquidation amount of such holder’s APEX.

The holders of a majority in liquidation amount of the applicable APEX have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of a Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under the Guarantee . Any holder of APEX may institute a legal proceeding directly against us to enforce the Guarantee Trustee’s rights and our obligations under a Guarantee , without first instituting a legal proceeding against the Trust, the Guarantee Trustee or any other person or entity.

(c) To the fullest extent permitted under applicable Law and subject to Section ‎2‎(f) below, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guarantee d Obligations and notice of or proof of reliance by the Guarantee d Party upon this Limited Guarantee or acceptance of this Limited Guarantee . Without expanding the obligations of the Guarantor hereunder, the Guarantee d Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee , and all dealings between Parent and/or the Guarantor, on the one hand, and the Guarantee d 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 Guarantor, the Guarantee d Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, any Other Guarantor or any other Person for the Guarantee d Obligations or any right of offset with respect thereto, and any failure by the Guarantee d Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guarantee d Party of Parent or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guarantee d Party, and to the extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any such pursuit or election, in each case subject to Section 2(a).

11/20/2020 (China Biologic Products Holdings, Inc.)

6. Continuing Guarantee . Unless terminated pursuant to the provisions of Section ‎5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the payment and satisfaction in full of the Guarantee d Obligations (subject to the Maximum Amount), shall be binding upon the Guarantor, its successors and permitted assigns, and shall inure to the benefit of, and be enforceable by, the Guarantee d Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee , the provisions of this Limited Guarantee that are for the benefit of any Non-Recourse Party (including the provisions of Sections ‎3, ‎5 and ‎16) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any such Non-Recourse Party.

(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 . When a reference is made in this Limited Guarantee to a Section, such reference shall be to a Section of this Limited Guarantee unless otherwise indicated. The word “including” and words of similar import when used in this Limited Guarantee shall mean “including, without limitation,” unless otherwise specified.

3. Limited Guarantee . Concurrently with the execution and delivery of this letter agreement, Sponsor is executing and delivering to the Company a limited guarantee , dated as of the date hereof, related to certain payment obligations of Parent and Merger Sub under the Merger Agreement (the “Limited Guarantee ”). The Company’s (i) remedies against Sponsor and its successors and assigns under the Limited Guarantee , (ii) remedies against Parent and Merger Sub and their respective successors and assigns under the Merger Agreement, and (iii) remedies against Sponsor and its successors and assigns pursuant to the Company Third Party Beneficiary Rights (as defined below) hereunder shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company, any of the direct or indirect shareholder of the Company or any of its subsidiaries, any Affiliate of the Company or such shareholder, or any of the Affiliates, equity holders, controlling persons, directors, officers, employees, members, managers, general or limited partners, representatives, advisors or agents of the foregoing against Sponsor or any of the Sponsor Affiliates (as defined below) in respect of any liabilities, losses, damages, obligations or recoveries of any kind (including special, exemplary, consequential, indirect or punitive damages or damages arising from loss of profits, business opportunities or goodwill, diminution in value or any other losses or damages, whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with any breach of the Merger Agreement (whether willfully, intentionally, unintentionally or otherwise) or of the failure of the Merger to be consummated for any reason or otherwise in connection with the transactions contemplated hereby and thereby or in respect of any representations made or alleged to have been made in connection therewith (whether or not Parent or Merger Sub’s breach is caused by the breach by Sponsor of its obligations under this letter agreement).

SECTION3.08. Guarantee . Concurrently with the execution of this Agreement, Parent has delivered to the Company the duly executed guarantee of each Guarantor, dated as of the date of this Agreement, in favor of the Company in respect of certain of Parent’s obligations under, or in connection with, this Agreement, the Merger and the other Transactions (each, a “ Guarantee ”). Each Guarantee is (a)a legal, valid and binding obligation of the applicable Guarantor, (b)enforceable against the applicable Guarantor in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception and (c)in full force and effect. As of the date of this Agreement, no event has occurred which (with or without notice, lapse of time, or both), would or would reasonably be expected to constitute a default or breach on the part of the applicable Guarantor under any Guarantee .

03/02/2020 (CINCINNATI BELL INC)

Section17.01.The Guarantee . The Guarantor hereby unconditionally guarantee s to the Trustee and each Holder of a Security authenticated and delivered by the Trustee all obligations of the Company under this Indenture in accordance with the terms of the Subordinated Debt Securities Guarantee Agreement.

09/22/2020 (PARTNERRE LTD)

Section5.01 Guarantee . The Guarantor hereby irrevocably and unconditionally guarantee s to each Holder the due and punctual payment of the principal of, any premium and interest on, and any Additional Amounts, if applicable, with respect to any Debenture held by such Holder, when and as the same shall become due and payable, whether at maturity, by acceleration, redemption, repayment or otherwise, in accordance with the terms of such Debenture and of the Indenture, and to the Trustee payment of all amounts due to the Trustee relating to the performance of its duties under the Indenture. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Guarantee Trustee, on the other hand, the maturity of the Debentures guarantee d hereby may be accelerated as provided in Article5 of the Indenture for the purposes of this Guarantee , notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Debentures guarantee d hereby.

Section5.06Limitation on Liability. The Guarantor, and by its acceptance of Debentures of any series, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code or any similar state law to the extent applicable to any Guarantee . Any term or provision of the Indenture to the contrary notwithstanding, the maximum aggregate amount of the obligations guarantee d hereunder by the Guarantor shall not exceed the maximum amount that can be hereby guarantee d without rendering the Indenture, as it relates to the Guarantor, or the Guarantee voidable or otherwise ineffective under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.

The Company has, through the Guarantee , Trust Agreement, Junior Subordinated Debentures, Indenture and the Expense Agreement (each as defined herein), taken together, fully, irrevocably and unconditionally guarantee d all of Air T Funding’s obligations under the Capital Securities. See “Relationship Among the Capital Securities, the Junior Subordinated Debentures and the Guarantee -- Full and Unconditional Guarantee .” Under the Guarantee , the Company guarantee s the payment of Distributions by Air T Funding and payments on liquidation of or redemption of the Capital Securities (subordinate to the right to payment of Senior and Subordinated Debt of the Company, as defined herein) to the extent of funds held by Air T Funding. The Guarantee does not cover payment of Distributions when Air T Funding does not have sufficient funds to pay such Distributions. See “Description of Guarantee .” If the Company does not make required payments on the Junior Subordinated Debentures held by Air T Funding, Air T Funding will have insufficient funds to pay Distributions on the Capital Securities. In such event, a holder of the Capital Securities may institute a legal proceeding directly against the Company to enforce payment of such Distributions to such holder. See “Description of Junior Subordinated Debentures -- Enforcement of Certain Rights by Holders of the Capital Securities.” The obligations of the Company under the Guarantee and the Junior Subordinated Debentures are subordinate and junior in right of payment to all Senior and Subordinated Debt (as defined in “Description of Junior Subordinated Debentures -- Subordination”) of the Company.

05/29/2019 (AIR T INC)

Payments of Distributions and other amounts due on the Capital Securities (to the extent Air T Funding has funds available for the payment of such Distributions) are irrevocably guarantee d by the Company as and to the extent set forth under “Description of Guarantee .” Taken together, the Company’s obligations under the Junior Subordinated Debentures, the Indenture, the Trust Agreement, the Expense Agreement and the Guarantee provide, in the aggregate, a full, irrevocable and unconditional guarantee of payments of distributions and other amounts due on the Capital Securities. No single document standing alone or operating in conjunction with fewer than all of the other documents constitutes such guarantee . It is only the combined operation of those documents that has the effect of providing a full, irrevocable and unconditional guarantee of Air T Funding’s obligations under the Capital Securities. If and to the extent that the Company does not make payments on the Junior Subordinated Debentures, Air T Funding will not pay Distributions or other amounts due on the Capital Securities. The Guarantee does not cover payment of Distributions when Air T Funding does not have sufficient funds to pay such Distributions. In such event, the remedy of a holder of the Capital Securities is to institute a legal proceeding directly against the Company for enforcement of payment of such Distributions to such holder. The obligations of the Company under the Guarantee are subordinate and junior in right of payment to all Senior and Subordinated Debt.

The Guarantor shall be subrogated to all (if any) rights of the Holders of Capital Securities against Air T Funding in respect of any amounts paid to such Holders by the Guarantor under this Capital Securities Guarantee ; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Capital Securities Guarantee , if, at the time of any such payment, any amounts are due and unpaid under this Capital Securities Guarantee . If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders.

Dividends on the preference shares are payable quarterly on a non-cumulative basis, only when, as and if declared by the Board, on March15, June15, September15 and December15 of each year at a fixed rate equal to 8.00% per annum on the liquidation preference, commencing on September15, 2009. In the event that, during the term of the Guarantee , we do not pay full dividends in respect of any quarterly dividend period on any preference shares that are then issued and outstanding, the Guarantor has agreed to pay to the trustee, in trust, for the benefit of, and for further payment to, the holders of the preference shares an amount equal to such unpaid dividends or unpaid liquidation preference pursuant to the Guarantee . The terms of the Guarantee also provide that to the extent the Guarantor pays any unpaid dividends or liquidation preference, then the Guarantor will be subrogated against the Bank in respect of rights of payment that the holders of the preference shares would have had against the Bank but for the Guarantor's payment. Furthermore, if full dividends payable on the preference shares have not been paid by the Bank for an aggregate of six quarterly dividend periods or more (whether or not consecutive) the Guarantor shall have the right to appoint two persons to the Board of the Bank until such time as full dividends have been paid by the Bank on the preference shares for at least four consecutive quarterly dividend periods.

08/04/2016 (Bank of N.T. Butterfield & Son Ltd)

Following the capital raise on March2, 2010, the terms of the 4,279,601warrants with an exercise price of $7.01 previously issued to the Government of Bermuda in conjunction with the issuance of the preference shares in 2009 were adjusted in accordance with the terms of the Guarantee . Subsequently, the Government of Bermuda now holds 4.32million (2014: 4.30million) warrants with an exercise price of $3.47 (2014: $3.49) with an expiration date of June22,2019.

Following the capital raise on March2, 2010, the terms of the 4,279,601 warrants with an exercise price of $7.01 previously issued to the Government of Bermuda in conjunction with the issuance of the preference shares in 2009 were adjusted in accordance with the terms of the Guarantee . Subsequently, the Government of Bermuda now holds 4.32million (December31, 2015: 4.32million) warrants with an exercise price of $3.47 (December31, 2015: $3.47) with an expiration date of June22, 2019.

The Bank considers the fees collected in connection with the issuance of standby letters of credit and letters of guarantee to be representative of the fair value of its obligation undertaken in issuing the guarantee . In accordance with applicable accounting standards related to guarantee s, the Bank defers fees collected in connection with the issuance of standby letters of credit and letters of guarantee . The fees are then recognised in income proportionately over the life of the credit agreements. The following table presents the outstanding financial guarantee s. Collateral is shown at estimated market value less selling cost. Where the collateral is cash, it is shown gross including accrued income.

The Bank considers the fees collected in connection with the issuance of standby letters of credit and letters of guarantee to be representative of the fair value of its obligation undertaken in issuing the guarantee . In accordance with applicable accounting standards related to guarantee s, the Bank defers fees collected in connection with the issuance of standby letters of credit and letters of guarantee . The fees are then recognised in income proportionately over the life of the credit agreements.

(j) Unpaid Dividends Guarantee . If the Bank does not pay, on any Dividend Payment Date, a full dividend on the Preference Shares in respect of the corresponding Dividend Period during the Term, holders of the Preference Shares shall have the rights and benefits with respect to the Guarantor set forth in Section4.1 of the Guarantee Agreement.

Section2.3 Not Responsible for Recitals or Issuance of Guarantee . The recitals contained in this Guarantee Agreement shall be taken as the statements of the Bank and the Guarantor, and the Guarantee Trustee does not assume any responsibility for their correctness. The Guarantee Trustee makes no representation as to the validity or sufficiency of this Guarantee Agreement, the Certificate of Designation, the Warrant or the Preference Shares.

Section4.8 Reinstatement of Guarantee . The obligation by the Guarantor to make any Guarantee Payment or to pay all or any portion of the Liquidation Payment Price or the Guarantee End Date Put Price pursuant to Sections 4.1, 4.2 and 4.3 hereof will be reinstated, as the case may be, if at any time any Holder must restore payment of any sums paid with respect to Preference Shares or this Guarantee Agreement.

(c)To the fullest extent permitted under applicable Law and subject to Section‎2‎(f)below, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guarantee d Obligations and notice of or proof of reliance by the Guarantee d Party upon this Limited Guarantee or acceptance of this Limited Guarantee . Without expanding the obligations of the Guarantor hereunder, the Guarantee d Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee , and all dealings between Parent and/or the Guarantor, on the one hand, and the Guarantee d 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 Guarantor, the Guarantee d Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, any Other Guarantor or any other Person for the Guarantee d Obligations or any right of offset with respect thereto, and any failure by the Guarantee d Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guarantee d Party of Parent or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guarantee d Party, and to the extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any such pursuit or election, in each case subject to Section2(a).

XML 24 R15.htm IDEA: XBRL DOCUMENT /* Do Not Remove This Comment */ function toggleNextSibling (e) { if (e.nextSibling.style.display=='none') { e.nextSibling.style.display='block'; } else { e.nextSibling.style.display='none'; } } v3.10.0.1 Restricted cash and short term deposits 9 Months Ended Sep. 30, 2018 Supplemental Cash Flow Elements [Abstract] Restricted cash and short term deposits RESTRICTED CASH AND SHORT-TERM DEPOSITSOur restricted cash and short-term deposits balances are as follows:(in thousands of $)September30, 2018December 31, 2017Restricted cash relating to the total return equity swap69,38258,351Restricted cash in relation to the Hilli(1)175,482174,737Restricted cash and short-term deposits held by lessor VIEs188,434130,063Restricted cash relating to the $1.125 billion debt facility22,98633,752Restricted cash relating to office lease818813Bank guarantee 67499Total restricted cash and short-term deposits457,776397,815Less: Amounts included in current restricted cash and short-term deposits(302,456)(222,265)Long-term restricted cash155,320175,550(1) In November 2015, in connection with the issuance of a letter of credit by a financial institution to our project partner involved in the Hilli FLNG project, we were required to provide cash collateral to support the performance guarantee . The following table identifies the balance sheet line-items included in cash, cash equivalents and restricted cash presented in the consolidated statements of cash flows:(in thousands of $)September30, 2018December 31, 2017September30, 2017December 31, 2016Cash and cash equivalents306,387214,862286,562224,190Restricted cash and short-term deposits (current portion)302,456222,265270,087183,693Restricted cash (non-current portion)155,320175,550182,416232,335764,163612,677739,065640,218 X - DefinitionThe entire disclosure for supplemental cash flow activities, including cash, noncash, and part noncash transactions, for the period. Noncash is defined as information about all investing and financing activities of an enterprise during a period that affect recognized assets or liabilities but that do not result in cash receipts or cash payments in the period. "Part noncash" refers to that portion of the transaction not resulting in cash receipts or cash payments in the period.

11/16/2018 (GOLAR LNG LTD)

XML 42 R33.htm IDEA: XBRL DOCUMENT /* Do Not Remove This Comment */ function toggleNextSibling (e) { if (e.nextSibling.style.display=='none') { e.nextSibling.style.display='block'; } else { e.nextSibling.style.display='none'; } } v3.10.0.1 Restricted cash and short term deposits (Tables) 9 Months Ended Sep. 30, 2018 Supplemental Cash Flow Elements [Abstract] Restrictions on Cash and Cash Equivalents Our restricted cash and short-term deposits balances are as follows:(in thousands of $)September30, 2018December 31, 2017Restricted cash relating to the total return equity swap69,38258,351Restricted cash in relation to the Hilli(1)175,482174,737Restricted cash and short-term deposits held by lessor VIEs188,434130,063Restricted cash relating to the $1.125 billion debt facility22,98633,752Restricted cash relating to office lease818813Bank guarantee 67499Total restricted cash and short-term deposits457,776397,815Less: Amounts included in current restricted cash and short-term deposits(302,456)(222,265)Long-term restricted cash155,320175,550(1) In November 2015, in connection with the issuance of a letter of credit by a financial institution to our project partner involved in the Hilli FLNG project, we were required to provide cash collateral to support the performance guarantee . Schedule of Cash Flow, Supplemental Disclosures The following table identifies the balance sheet line-items included in cash, cash equivalents and restricted cash presented in the consolidated statements of cash flows:(in thousands of $)September30, 2018December 31, 2017September30, 2017December 31, 2016Cash and cash equivalents306,387214,862286,562224,190Restricted cash and short-term deposits (current portion)302,456222,265270,087183,693Restricted cash (non-current portion)155,320175,550182,416232,335764,163612,677739,065640,218 X - DefinitionTabular disclosure of supplemental cash flow information for the periods presented.

3.Enforceability. Except as provided in the immediately following sentence, this letter agreement may be enforced only by Parent at the direction of the Sponsor, and, nothing set forth in this letter agreement shall be construed to confer upon or give to the Partnership, the Partnership GP or any other Person (including Parent’s, Merger Sub’s, the Partnership’s and the Partnership GP’s respective direct and indirect creditors), other than the parties hereto and their respective successors and permitted assigns, any benefits, rights or remedies under or by reason of this letter agreement, or any rights to enforce the Commitment or to cause Parent to enforce the Commitment. Notwithstanding the foregoing, if the Partnership or the Partnership GP is entitled to specific performance in accordance with Section9.8(b) of the Merger Agreement to cause the Commitment to be funded, the Partnership or the Partnership GP may enforce Parent’s right to cause the Commitment to be funded by the Sponsor without the direction of the Sponsor, and in such event and solely to such extent each of the Partnership or the Partnership GP will be deemed an express third-party beneficiary of Parent’s rights under this letter agreement. For the avoidance of doubt, the Partnership or the Partnership GP may pursue enforcement of its rights under both this letter agreement and that certain Limited Guarantee by the Sponsor in favor of the Partnership (the “Limited Guarantee ”), or either of them; provided, that the Partnership or the Partnership GP shall only be entitled to actually enforce its rights under either this letter agreement or the Limited Guarantee . The exercise by Parent, the Partnership or the Partnership GP of any right to enforce this letter agreement does not give rise to any other remedies, monetary or otherwise.

04/24/2019 (American Midstream Partners, LP)

6. Continuing Guarantee . Unless terminated pursuant to the provisions of Section5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guarantee d Obligations (subject to the Maximum Amount), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guarantee d Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee , the provisions of this Limited Guarantee that are for the benefit of any Non-Recourse Party (including the provisions of Sections3, 5 and 16) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any such Non-Recourse Party. All obligations to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.

06/17/2020 (BITAUTO HOLDINGS LTD)

*** The Enhanced Death Benefit is payable on death of the Covered Life with a Single Life Guarantee . If a Joint Life Guarantee is elected, on death of one Covered Life, the surviving Covered Life can choose to continue the Contract3 and all Riders. The Enhanced Death Benefit will then be payable to the Beneficiary upon the death of the surviving Covered Life.

04/15/2019 (PENN MUTUAL VARIABLE ANNUITY ACCOUNT III)

The Rider can be purchased as a Single or Joint Life Guarantee . Under a Single Life Guarantee , all Rider features and benefits are based on the age and lifetime of the Covered Life, and the Enhanced Death Benefit is payable on death of the Covered Life. Under a Joint Life Guarantee , all Rider features are based on the age of the younger Covered Life. If a Joint Life Guarantee is elected, upon the first death of a Covered Life, the surviving Covered Life, if permitted by federal tax law, can choose to continue the Contract14 and the Rider, and the Enhanced Death Benefit will then be payable to the Beneficiary upon the death of the surviving Covered Life. You must specify both Covered Lives in the Application for a Joint Life Guarantee . A death benefit available at the death of the Owner prior to the later death of the Covered Lives is the Standard Death Benefit if the deceased Owner was sole Annuitant. If the Second Covered Life was also named Joint Annuitant, the death benefit payable on death of the Owner / Annuitant is Contract Value only.

You cannot convert a Single Life Guarantee to a Joint Life Guarantee . You will not be able to add a Covered Life after the Rider Effective Date.

The Rider will terminate upon the death of a sole Covered Life for a Single Life Guarantee , or the later death of both Covered Lives for a Joint Life Guarantee . The Death Benefit, including the Death Benefit Enhancement provided by this Rider, will then be distributed as described below.

The Enhanced Death Benefit is payable upon the death of the Covered Life under the Rider, or the later death of two Covered Lives with a Joint Life Guarantee . The amount payable is the Death Benefit Enhancement, which is the amount (capped at $1,000,000.00) by which the Enhanced Death Benefit Base exceeds the Standard Death Benefit payable under the Contract. The Death Benefit Enhancement amount is determined as of the date our Administrative Office receives proof of death of the Covered Life (both Covered Lives for a Joint Life Guarantee ) such as a death certificate or other official document establishing death, and other documents required to process the payment.

Lifetime Withdrawal Guarantee .The Guarantee d Growth and Income Benefit Rider (also referred to as “Rider” throughout this section) is an optional benefit that provides a Lifetime Withdrawal Guarantee — payments for the lifetime of the Covered Life (with a Single Life Guarantee ), or for the lifetime of the last surviving Covered Life (with a Joint Life Guarantee ). This Rider provides for a guarantee d lifetime withdrawal benefit adjusted for the Guarantee d Growth Increase and market Step-Ups. The Guarantee d Growth Increase provides a simple interest increase22 to the Withdrawal Benefit Base for a period of 10 years, while market Step-Ups lock in the market performance annually (if higher than the Guarantee d Growth Increase). The Withdrawal Benefit Base is accumulated in this way before withdrawals under the Lifetime Withdrawal Guarantee are exercised. The Lifetime Withdrawal Guarantee is then based on this Withdrawal Benefit Base and provides lifetime income at eligible ages. Lifetime income is guarantee d as a percentage of the Withdrawal Benefit Base that varies with age at the time the Lifetime Withdrawal Guarantee is exercised (based on the age of the younger Covered Life). After the start of withdrawals, the Guarantee d Annual Withdrawal Amount will be adjusted for market Step-Ups only ( Guarantee d Growth Increases will stop). Payments will be made for the life of the Covered Life or for the lifetime of the last surviving Covered Life for a Joint Life Guarantee .

Table of Contents Withdrawal Benefit Base. You will most benefit from this Rider if you delay your lifetime withdrawals to allow your Withdrawal Benefit Base to increase with the Guarantee d Growth and/or market Step-Ups. Lifetime income becomes available starting at age 55, and guarantee d withdrawal percentages vary based on the age at which you exercise your Lifetime Withdrawal Guarantee . Withdrawal percentages are based on the age of the younger Covered Life, if you elect the Joint Life Guarantee .

The Rider can be purchased as a Single or Joint Life Guarantee . Under a Single Life Guarantee , all Rider features and benefits are measured using the age and lifetime of the sole Covered Life, who is also the sole Annuitant. Under a Joint Life Guarantee , all Rider features are measured using the age of the younger Covered Life, and all lifetime benefits are payable over the lifetime of the last survivor of the Covered Lives. You must specify both Covered Lives in the Application for a Joint Life Guarantee .

Table of Contents If you have started withdrawals under the Lifetime Withdrawal Guarantee of the Rider, the Joint Life Guarantee cannot be converted to a Single Life Guarantee . The Covered Life can be removed from the Contract by the Contract Owner(s) (provided that all Owner / Annuitant requirements are satisfied), but the charge for the Rider would remain at the Joint Life Guarantee charge, and all features and benefits of the Rider will continue to be based upon the age/lifetime of the original Covered Lives.

The current Rider Charge for a Single Life Guarantee is 1.10% (1.05% for Contracts purchased prior to March15, 2013), and 1.25% for a Joint Life Guarantee . The Maximum Rider Charge is 2.00%. Current and Maximum Rider Charges, as well as the Maximum Charge Increases are summarized in the “Rider Charges” subsection in Section3.2 — “Periodic Charges”.

If you request a withdrawal before the Lifetime Withdrawal Guarantee becomes available to you (based on the age of the younger Covered Life), it will be treated as an Early Access Withdrawal, which can be taken as a one-time distribution or periodically under the Systematic Withdrawal option, and the Contract will remain in the Deferral Phase. If the withdrawals are set up systematically, the Contract will remain in the Deferral Phase until the request is received by the Company with instructions to enter the Withdrawal Phase and to exercise the Lifetime Withdrawal Guarantee . There may be tax implications to taking withdrawals prior to age 59 1/2. See Section14 — “Taxes” for more information.

If you request a withdrawal after the Lifetime Withdrawal Guarantee becomes available to you (based on the age of the younger Covered Life), your Lifetime Withdrawal Guarantee will be exercised, and the Contract will move into the Withdrawal Phase. If you wish to remain in the Deferral Phase, you must specifically request an Early Access Withdrawal, which can be taken as a one-time distribution or systematically. If you request to receive an Early Access Withdrawal systematically, your Contract will remain in the Deferral Phase until you send us a request with instructions to enter the Withdrawal Phase and exercise the Lifetime Withdrawal Guarantee . There may be tax implications to taking withdrawals prior to age 59 1/2. See Section14 — “Taxes” for more details.

Your Lifetime Withdrawal Guarantee provides lifetime withdrawals up to the Guarantee d Annual Withdrawal Amount for the lifetime of the Covered Life or for the lifetime of the last surviving Covered Life for a Joint Life Guarantee . The Guarantee d Annual Withdrawal Amount is adjusted for Guarantee d Growth and Contract Value Step-Ups. The Lifetime Withdrawal Guarantee is only available if the younger Covered Life at the time of the first Lifetime Withdrawal is 55 or older. Termination of the Rider or the Contract will result in termination of payments under this guarantee (please refer to Section9.17 — “Termination of the Guarantee d Growth and Income Benefit Rider” for more details).

The Lifetime Withdrawal Rate is used to determine the amount of your lifetime withdrawals ( Guarantee d Annual Withdrawal Amount). The age at the time the Lifetime Withdrawal Guarantee is first exercised determines the Lifetime Withdrawal Rate. For a Single Life Guarantee , the Lifetime Withdrawal Rate is based on the Actual Age of the Covered Life at the time you exercise the Lifetime Withdrawal Guarantee . For a Joint Life Guarantee , the Lifetime Withdrawal Rate is based on the Actual Age of the younger Covered Life at the time you exercise the Lifetime Withdrawal Guarantee (referred to as “age” or “Actual Age” in the section below).

The Guarantee d Growth and Income Benefit Rider will terminate upon the death of the sole Covered Life for a Single Life Guarantee , or later death of both Covered Lives for a Joint Life Guarantee . The Death Benefit will then be distributed according to the death settlement options available under the terms of the Base Contract.

The Combination Rider can be purchased as a Single or Joint Life Guarantee . Under a Single Life Guarantee , all Rider features and benefits are measured using the age and lifetime of the Covered Life, and the Enhanced Death Benefit is payable on death of the Covered Life. Under a Joint Life Guarantee , all Rider features are measured using the age of the younger Covered Life. If a Joint Life Guarantee is elected, upon the first death of a Covered Life, the surviving Covered Life can choose to continue the Contract25 and the Combination Rider, and the Enhanced Death Benefit will then be payable to the Beneficiary upon the death of the surviving Covered Life. You must specify both Covered Lives in the Application for a Joint Life Guarantee . A death benefit available at the death of the Owner (or Annuitant if the Owner is a non-natural person) prior to the later death of the Covered Lives is Contract Value only.

If you have started withdrawals under one of the Living Benefit Guarantee withdrawal options of the Rider, the Joint Life Guarantee cannot be converted to a Single Life Guarantee . The Covered Life can be removed from the Contract by the Contract Owner(s) (provided that all Owner / Annuitant requirements are satisfied), but the features and benefits provided under a Joint Life Guarantee will still apply.

Table of Contents Withdrawal Phase Inflation Increase Period — Lifetime Withdrawal Guarantee .In the Withdrawal Phase under the Lifetime Withdrawal Guarantee (described in Section11.10 — “Withdrawal Options under the Rider — Lifetime Withdrawal Guarantee under the Living Benefit Guarantee ”), Inflation Increases will be applied to the Withdrawal Benefit Base as long as the Contract Value is greater than zero within the Withdrawal Phase.

The Lifetime Withdrawal Rate is used to determine the amount of the Guarantee d Annual Withdrawal Amount under the Lifetime Withdrawal Guarantee . The Lifetime Withdrawal Rate is the sum of the Age-Based Lifetime Withdrawal Rate (shown in the table below) and the Effective Waiting Bonus (see below) if applicable. For a Single Life Guarantee , the Actual Age of the Covered Life at the time the Lifetime Withdrawal Guarantee is first exercised determines the Age-Based Lifetime Withdrawal Rate. For a Joint Life Guarantee , the Actual Age of the younger Covered Life at the time the Lifetime Withdrawal Guarantee is first exercised determines the Age-Based Lifetime Withdrawal Rate.

The Standard Withdrawal Benefit Balance is used to determine how long the benefit will last under the Standard Withdrawal Guarantee . The Standard Withdrawal Benefit Balance is established at the time you enter the Withdrawal Phase under the Standard Withdrawal Guarantee , and is set equal to the Withdrawal Benefit Base at this time. The Standard Withdrawal Benefit Balance will decrease for withdrawals less than or equal to the Guarantee d Annual Withdrawal Amount by the amount of the Withdrawal up to the Standard Annual Reduction (described below). The Standard Withdrawal Benefit Balance will step-up to the Contract Value at the time of an Automatic Annual Step-Up of the Withdrawal Benefit Base to the Contract Value (if applicable).

The Standard Annual Reduction is the maximum amount by which the Standard Withdrawal Benefit Balance is reduced when a withdrawal up to the Guarantee d Annual Withdrawal Amount is taken. The Standard Annual Reduction is established at the time you enter the Withdrawal Phase under the Standard Withdrawal Guarantee . At this time, the Standard Annual Reduction will be set equal to the Standard Withdrawal Rate multiplied by the Withdrawal Benefit Base and will initially be equal to the Guarantee d Annual Withdrawal Amount. While the Guarantee d Annual Withdrawal Amount may increase thereafter as a result of Inflation Increases, the Standard Annual Reduction will not. The Standard Annual Reduction will be recalculated upon Automatic Annual Step-Up of the Withdrawal Benefit Base to the Contract Value, and may decrease upon an Excess Withdrawal.

• If the Withdrawal Benefit Base is greater than zero and you are eligible for the Living Benefit Guarantee , and the Lifetime Withdrawal Guarantee is available (based on age of the younger Covered Life), the Contract will be annuitized using the Lifetime Withdrawal Guarantee . The Guarantee d Annual Withdrawal Amount will be determined based on the Withdrawal Benefit Base at the time of Annuitization and the then applicable Lifetime Withdrawal Rate (based on age of the younger Covered Life). The Lifetime Withdrawal Rate is based on the Age-Based Lifetime Withdrawal Rate and Waiting Bonus (if applicable) at the time the Contract Value is reduced to zero. Inflation Increases will no longer be credited to the Withdrawal Benefit Base after the Contract Value is reduced to zero in the Deferral Phase.

• If the Contract is in the Deferral Phase as of the Annuity Date, but the Lifetime Withdrawal Guarantee is not available based on the age of the younger Covered Life, the Contract will be annuitized using the Standard Withdrawal Guarantee . The Guarantee d Annual Withdrawal Amount will be determined based on the Withdrawal Benefit Base at the time of Annuitization and the lowest available Standard Withdrawal Rate. This amount will be payable annually until the Standard Withdrawal Benefit Balance is reduced to zero or the lifetime of the last surviving Covered Life, whichever is earlier. After Annuitization, Inflation Increases and Step-Ups will no longer apply.

Single Life Guarantee . A Single Life Guarantee is issued when a sole Covered Life is specified in the Additional Contract Specifications. The Covered Life under the Single Life Guarantee must be the sole Annuitant. The Covered Life must also be a Contract Owner, unless the Contract Owner is an entity. Minimum withdrawals under the Lifetime Withdrawal Guarantee will be made for the lifetime of the Covered Life.

Joint Life Guarantee . A Joint Life Guarantee is issued when two Covered Lives are specified in the Additional Contract Specifications. One Covered Life must be the Annuitant, and the second Covered Life must either be a Joint Annuitant or a Contingent Annuitant. At least one Covered Life must be a Contract Owner, and any non-Owner Covered Life must be the sole primary Beneficiary. If Covered Lives are both Owners, they must be each other’s sole primary Beneficiary. Minimum withdrawals under the Lifetime Withdrawal Guarantee will continue for the lifetime of the last surviving Covered Life. A Joint Life Guarantee may be continued upon Contract Owner’s death only if permitted by federal law.

Replacing a Covered Life under a Joint Life Guarantee . If withdrawals have not started under one of the Living Benefit Guarantee withdrawal options of the Rider, and provided that all Owner / Annuitant designation requirements outlined in the Contract are satisfied, the Covered Life may be replaced by the Contract Owner(s). All features and benefits of the Rider will be based on the younger Covered Life (after replacement), and any Covered Life must also meet issue age requirements at time of designation.

Impact of Divorce. Upon divorce, unless the divorce decree provides otherwise, the Contract Owner(s) has(have) the following options: (1)change the Rider from a Joint Life Guarantee to a Single Life Guarantee (subject to conditions outlined under “Converting a Joint Life Guarantee to a Single Life Guarantee ” above); (2) keep the Joint Life Guarantee , but replace a Covered Life (subject to conditions outlined under “Replacing a Covered Life under a Joint Life Guarantee ” above); or (3)terminate the Rider, thereby eliminating the Living Benefit Guarantee . The Company will attempt to accommodate any other arrangements provided in a divorce decree. Any change or transfer of ownership as a result of divorce is subject to the change in ownership provisions of the Contract.

Living Benefit Guarantee . This Rider provides the Contract Owner(s) with guarantee d minimum withdrawals under the Living Benefit Guarantee withdrawal options. It allows the Contract Owner(s) to receive Guarantee d Annual Withdrawal Amounts based on the Withdrawal Benefit Base as described below. Under the Rider, the Contract will have two distinct phases. The period prior to the exercise of the first withdrawal taken under the Living Benefit Guarantee is called the Deferral Phase. The period during which withdrawals are taken under the Living Benefit Guarantee is called the Withdrawal Phase.

Withdrawal requested before Living Benefit Guarantee becomes available. If a withdrawal is requested before the Living Benefit Guarantee becomes available, it will be treated as a Deferral Phase Withdrawal, which can be taken as a one-time distribution or on a periodic basis under the “Systematic Withdrawals” provision. If Deferral Phase Withdrawals are set up systematically, the Contract will remain in the Deferral Phase until the request is received by the Company with instructions to enter the Withdrawal Phase and exercise the Living Benefit Guarantee . There may be tax implications to taking withdrawals prior to age 59 1⁄2.

Standard Withdrawal Guarantee . Under the Standard Withdrawal Guarantee , the Company guarantee s withdrawals up to the Guarantee d Annual Withdrawal Amount (based on the Withdrawal Benefit Base) until the Standard Withdrawal Benefit Balance is reduced to zero, or for the lifetime of the last surviving Covered Life (whichever ends earlier).

Lifetime Withdrawal Guarantee . Under the Lifetime Withdrawal Guarantee , the Company guarantee s withdrawals up to the Guarantee d Annual Withdrawal Amount (based on the Withdrawal Benefit Base) for the lifetime of the last surviving Covered Life.

Single Life Guarantee . A Single Life Guarantee is issued when a sole Covered Life is specified in the Additional Contract Specifications. The Covered Life under the Single Life Guarantee must be the sole Annuitant. The Covered Life must also be a Contract Owner, unless the Contract Owner is an entity. Minimum withdrawals under the Lifetime Withdrawal Guarantee will be made for the lifetime of the Covered Life. Any Death Benefit Enhancement under the Rider is payable on death of the Covered Life.

The Bank will not be required to proceed against or enforce any other rights or Security or claim payment from any person before claiming from the Guarantor under this Guarantee . This applies irrespective of any law or provision of a Finance Document to the contrary.

11/05/2020 (PLURISTEM THERAPEUTICS INC)

The amount paid will be the greater of (i) the calculated Fixed Account value after application of the MVA and (ii) the Floor Guarantee . Consequently, in this example the amount paid as a result of the full Withdrawal request is the Floor Guarantee amount of $339,330. The Floor Guarantee limits the amount of the MVA actually assessed, which is effectively -3.05% (the “Effective MVA”) instead of the normal -10%.

02/02/2018 (VOYA INSURANCE & ANNUITY Co)

The Effective MVA may limit the MVA calculated under the Contract to ensure that upon full Withdrawal the net proceeds do not fall below the Floor Guarantee . The Effective MVA is calculated as follows [Floor Guarantee ÷ Fixed Account value]-1. Therefore, in this example the Effective MVA calculation is [$339,330 ÷ $350,000] – 1 = -3.05%.

Because the Floor Guarantee ($339,330) exceeds the Fixed Account value after application of the negative MVA, but does not exceed the total Fixed Account value immediately prior to the Withdrawal, the Fixed Account value ($350,000) is adjusted to equal the amount of the Floor Guarantee . In this example, the Fixed Account value is reduced by -3.05%, which is the Effective MVA actually assessed instead of the normal ‑10%.

Following the conclusion of this meeting and on June 13, 2020, Wilson Sonsini and Fenwick exchanged comments on the drafts of the form of the equity commitment letter and form of the limited guarantee . Fangda also exchanged comments with Hankun on representations and warranties of the Company relating to its PRC operations.

07/06/2020 (58.com Inc.)

11.Termination. This letter agreement and the obligation of each Warburg Entity to fund the Equity Commitment will terminate automatically and immediately upon the earliest to occur of (a)the valid termination of the Merger Agreement in accordance with its terms,(b)the Closing, at which time such obligation will be discharged but subject to performance of such obligation, (c)the Company or any of its Affiliates directly or indirectly (i)asserting a claim or initiate a proceeding against the Parent, the Merger Sub, any Warburg Entity, any Non-Recourse Party (as defined in the Limited Guarantee ) in connection with or relating to this letter agreement, the Merger Agreement, the Limited Guarantee , or any of the transactions contemplated under the Merger Agreement (other than a claim seeking an order of specific performance of such Warburg Entity’s obligation to make the Equity Commitment in the circumstances provided for in Section4(a), or seeking payment pursuant to the terms of a Limited Guarantee , or seeking specific performance pursuant to the Merger Agreement), or (ii)asserting that the Cap on Sponsor’s aggregate liabilities hereunder (or, with respect to any Warburg Entity, asserting that the limitation of such Warburg Entity’s aggregate liabilities hereunder up to its Pro Rata Percentage of the Cap) or the Cap (as defined in each Other Sponsor Equity Commitment Letter) on any Other Sponsor’s liabilities is illegal, invalid or unenforceable in whole or in part, and (d)any event which, by the terms of the Limited Guarantee , is an event which terminates the Sponsor’s liabilities under the Limited Guarantee . Upon termination of this letter agreement, all rights and obligations of the Sponsor hereunder with respect to the Equity Commitment shall terminate, and no Warburg Entity shall have any further liabilities hereunder. Notwithstanding anything to the contrary in this letter agreement, the provisions set forth in this letter agreement that are for the benefit of any Non-Recourse Party (as defined in the Limited Guarantee ) shall indefinitely survive any termination of this letter agreement.

2.Nature of Guarantee . The Guarantee d Party shall not be obligated to file any claim relating to the Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guarantee d Party to so file shall not affect the Guarantor’s obligations hereunder. Subject to the terms hereof, the Guarantor’s liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub. In the event that any payment to the Guarantee d Party hereunder in respect of the Obligations is rescinded or must otherwise be returned for any reason whatsoever (other than as set forth in the last sentence of Section8 hereof), the Guarantor shall remain liable hereunder with respect to the Guarantee d Percentage of such Obligations, subject to the terms and conditions hereof (including the Cap), as if such payment had not been made. This Limited Guarantee is an unconditional guarantee of payment and not of collection. This Limited Guarantee is a primary obligation of the Guarantor and is not merely the creation of a surety relationship, and the Guarantee d Party shall not be required to proceed against Parent or Merger Sub first before proceeding against the Guarantor hereunder. Notwithstanding anything herein to the contrary, the Guarantor shall have the right to assert, and shall have the benefit of, any defenses to the payment of the Obligations that are available to Parent or Merger Sub under the Merger Agreement or as otherwise expressly provided in Section3(a)hereof, other than defenses arising from bankruptcy, reorganization or similar proceeding of Parent or Merger Sub.

3.Limited Guarantee . Concurrently with the execution and delivery of this letter agreement, the Sponsor is executing and delivering to the Company an amended and restated limited guarantee (the “Limited Guarantee ”) guarantee ing the Guarantee d Percentage (as defined in the Limited Guarantee ) of the Obligations (as defined in the Limited Guarantee ). Other than with respect to the Retained Claims (as such term is defined under the Limited Guarantee ) and subject to Section4, the Company’s remedies against the Sponsor under the Limited Guarantee (as set forth in and in accordance with the terms of the Limited Guarantee ) shall be, and are intended to be, the sole and exclusive direct or indirect remedies (whether at Law or in equity, whether sounding in contract, tort, statute or otherwise) available to the Company and its Affiliates against the Sponsor and the Non-Recourse Parties (as defined in the Limited Guarantee ) in respect of any claims, liabilities or obligations arising out of or relating to this letter agreement, the Merger Agreement and the Transactions, including in the event Parent or Merger Sub breaches its obligations under the Merger Agreement, whether or not Parent’s or Merger Sub’s breach is caused by the Sponsor’s breach of its obligations under this letter agreement.

03/14/2019 (eHi Car Services Ltd)

(d)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 . When a reference is made in this Limited Guarantee to a Section, such reference shall be to a Section of this Limited Guarantee unless otherwise indicated. The word “including” and words of similar import when used in this Limited Guarantee will mean “including, without limitation,” unless otherwise specified.

(c)Each of the IIA Parties agrees and confirms that each Terminated Equity Commitment Letter and each Terminated Limited Guarantee is hereby irrevocably terminated and is of no further force and effect, including any provision of such Terminated Equity Commitment Letter or Terminated Limited Guarantee that by its terms would otherwise have survived the termination or expiration of such Terminated Equity Commitment Letter or Terminated Limited Guarantee . From and after the date hereof, neither the Baring Sponsors nor Redstone shall have any further obligations or liabilities under their respective Terminated Equity Commitment Letters and Terminated Limited Guarantee s.

SECTION 5.9 Guarantee . The Lender shall have received executed counterparts of the Guarantee , dated as of the date hereof, duly executed and delivered by each Subsidiary.

11/09/2017 (Natera, Inc.)

SECTION 5.13. Counterparts. This Guarantee may be executed by the parties hereto in several counterparts, each of which shall be an original and all of which shall constitute together but one and the same agreement. This Guarantee shall become effective when counterparts hereof executed on behalf of each Guarantor shall have been received by the Lender. Delivery of an executed counterpart of a signature page to this Guarantee by email (e.g. “pdf” or “tiff”) or telecopy shall be effective as delivery of a manually executed counterpart of this Guarantee . The words “execution,” “signed,” “signature,” and words of like import in this Guarantee shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

SECTION 3. Full Force of Guarantee . Except as expressly supplemented hereby, the Guarantee shall remain in full force and effect in accordance with its terms.

9. NATURE OF GUARANTEE . The Guarantor’s liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub. The Guarantee d Party shall not be obligated to file any claim relating to the Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guarantee d Party to so file shall not affect the Guarantor’s obligation hereunder. In the event that any payment to the Guarantee d Party in respect of any of the Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guarantee d Percentage of such Obligations, subject to the terms and conditions hereof, as if such payment had not been made. This Limited Guarantee is a primary and original obligation of the Guarantor and an unconditional and continuing guarantee of payment and is not of collection or merely the creation of a surety relationship, and the Guarantee d Party shall not be required to initiate any legal proceedings against Parent or Merger Sub before proceeding against the Guarantor hereunder.

02/04/2021 (Ruhnn Holding Ltd)

This charge is the maximum charge we guarantee . We may charge less than the maximum charge, and the charge may vary by Class. Note that Classincludes the Policy form to which this Rider is attached.

05/09/2019 (PACIFIC SELECT EXEC SEPARATE ACCT PACIFIC LIFE INS)

Each such charge is described below and may vary by Class. Note that Classincludes the Policy form to which this Rider is attached. The charges described here are maximum charges we guarantee . We may charge less than these maximum charges as described in Changes to Rider Charges, below.

The Limited Guarantee .Simultaneously with the execution of the Merger Agreement, the Equity Investors provided Smart& Final with a limited guarantee (the "Limited Guarantee ") pursuant to which each Equity Investor, severally and not jointly, guarantee s the payment and performance of Parent's obligations to Smart& Final with respect to the payment of the Parent Termination Fee, the Enforcement Expenses, certain reimbursement and indemnification obligations related to financing cooperation and damages resulting from fraud or willful breach of the Merger Agreement to the extent such damages survive termination of the Merger Agreement, in each case, subject to a maximum aggregate obligation of $32.5million and the other terms and conditions of the Limited Guarantee .

05/14/2019 (Smart & Final Stores, Inc.)

12. Governing Law; Jurisdiction; Venue. This Limited Guarantee shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws. In any action or proceeding arising out of or relating to this Limited Guarantee , each of the Parties: irrevocably and unconditionally (a)consents and submits to the exclusive jurisdiction and venue of the Chosen Courts; (b)irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which such Party is to receive notice in accordance with Section9.9 of the Merger Agreement; and (c)agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court. Each of the Parties irrevocably waives any and all right to trial by jury in any Legal Proceeding between the Parties (whether based on contract, tort or otherwise), including any counterclaim, arising out of or relating to this Limited Guarantee or the actions of any Party in the negotiation, administration, performance and enforcement of this Limited Guarantee . Each Party: (i)makes this waiver voluntarily; and (ii)acknowledges that such Party has been induced to enter into this Limited Guarantee by, among other things, the mutual waivers contained in this Section12.

8. CONTINUING GUARANTEE . (a) Subject to the last sentence of Section3(d), this Limited Guarantee may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantor, its successors and assigns until the earliest to occur of (i)all of the Obligations (subject to the Cap) payable under this Limited Guarantee having been paid in full by the Guarantor, (ii)the Effective Time, (iii)the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guarantee d Party or under circumstances in which Parent and Merger Sub would not be obligated to pay the Parent Termination Fee under Section8.06(b) of the Merger Agreement and (iv)ninety (90) days after any termination of the Merger Agreement in accordance with its terms under circumstances in which Parent and Merger Sub would be obligated to pay the Parent Termination Fee under Section8.06(b) of the Merger Agreement if the Guarantee d Party has not presented a bona fide written claim for payment of any Obligation to the Guarantor by such 90th day; provided that if the Guarantee d Party has presented such claim to the Guarantor by such date, this Limited Guarantee shall terminate upon the date such claim is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section10. The Guarantor shall have no further obligations under this Limited Guarantee following termination in accordance with this Section8.

04/09/2018 (eHi Car Services Ltd)

(b)This Guarantee is a guarantee of payment and performance and not of collection. The Creditor shall not be obligated to (i) enforce or exhaust its remedies against the Corporation or any other Person or under the Convertible Debenture or any other document, (ii) realize on any security, collateral, or other guarantee s that it may hold at any time in connection with the Guarantee d Obligations or (iii)take any other action before proceeding to enforce this Guarantee . The liability of the Guarantor to make payment under this Guarantee shall arise immediately upon delivery to it of a written demand for payment hereunder.

04/18/2019 (Rise Gold Corp.)

(c)No waiver by a party will affect the exercise of any other rights or remedies by that party under this Guarantee . Any failure or delay by a party in exercising any right or remedy will not constitute, or be deemed to constitute, a waiver by that party of that right or remedy. No single or partial exercise by a party of any right or remedy will preclude any other or further exercise by that party of any right or remedy.

The Creditor possesses and will possess information relating to the Corporation that is and may be material to this Guarantee . The Creditor has no obligation to disclose to the Guarantor any information that it may now or later possess concerning the Corporation.

6.No Recourse. Neither of the Guarantors shall have any obligations under or in connection with this Limited Guarantee except as provided by this Limited Guarantee . No liability shall attach to, and no recourse shall be had by the Guarantee d Party, any of its Affiliates or any Person purporting to claim by or through any of them or for the benefit of any of them, under any theory of liability (including without limitation by attempting to pierce a corporate or other veil or by attempting to compel any party to enforce any actual or purported right that they may have against any Person) against any former, current or future equity holders, controlling Persons, directors, officers, employees, agents, general or limited partners, managers, members or Affiliates of any of the Guarantors, Merger Sub or Parent, or any former, current or future equity holders, controlling Persons, directors, officers, employees, agents, general or limited partners, managers, members or Affiliates of any of the foregoing, excluding however the Guarantors, Parent and Merger Sub (collectively, the “Non-Recourse Parties”) in any way under or in connection with this Limited Guarantee , the Merger Agreement, any other agreement or instrument executed or delivered in connection with this Limited Guarantee or the Merger Agreement or the transactions contemplated hereby or thereby, except for claims (i) against any Guarantor and his or her successors and assigns under this Limited Guarantee pursuant to the terms hereof, and (ii) for the avoidance of doubt, against Parent and Merger Sub and their respective successors and assigns under the Merger Agreement pursuant to the terms thereof.

05/31/2016 (E-COMMERCE CHINA DANGDANG INC.)

2. NATURE OF GUARANTEE . The Guarantee d Party shall not be obligated to file any claim relating to the Guarantee d Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guarantee d Party to so file shall not affect each Guarantor’s obligations hereunder. In the event that any payment to the Guarantee d Party in respect of any Guarantee d Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantors shall remain liable hereunder with respect to such Guarantee d Obligations as if such payment had not been made (subject to such Guarantor’s respective Pro Rata Maximum Amount, to the extent applicable). This Limited Guarantee is an unconditional guarantee of payment and not of collectability, and the Guarantee d Party shall not be required to proceed against Parent or Merger Sub first before proceeding against the Guarantors hereunder or to pursue any other remedy in the Guarantee d Party’s power whatsoever. Subject to the terms hereof, each Guarantor’s liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub. Each Guarantor reserves the right to assert as a defense to such payment by the Guarantors under this Limited Guarantee any rights, remedies and defenses that Parent or Merger Sub may have with respect to payment of any Guarantee d Obligations under the Merger Agreement, other than defenses arising from bankruptcy or insolvency or Parent or Merger Sub and other defenses expressly waived herein.

10/02/2020 (Newater Technology, Inc.)

9. CONTINUING GUARANTEE .This Limited Guarantee shall remain in full force and effect and shall be binding on each Guarantor, his or her successors and assigns until all of the Guarantee d Obligations have been fully performed. Notwithstanding the foregoing, this Limited Guarantee shall terminate and each Guarantor shall have no further obligations under this Limited Guarantee as of the earliest of: (i) the Effective Time, if the Closing occurs, (ii) the payment in full of the Guarantee d Obligations; and (iii) the date falling six (6) months from the date of the termination of the Merger Agreement in accordance with its terms if the Guarantee d Party has not presented a bona fide written claim for payment of any Guarantee d Obligation to any Guarantor by such date; provided that if the Guarantee d Party has presented such a bona fide written claim by such date, this Limited Guarantee shall terminate upon the date that such claim is finally resolved and payment in full of any amounts required to be paid in respect of such final resolution. If any payment or payments made by Parent or Merger Sub, or any part thereof, are subsequently invalidated, declared to be fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver or any other person under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or payments, the Guarantee d Obligations or part thereof hereunder intended to be satisfied shall be revived and continued in full force and effect as if said payment or payments had not been made.

10. NO RECOURSE.Each Guarantor shall have no obligations under or in connection with this Limited Guarantee except as expressly provided by this Limited Guarantee . No liability shall attach to, and no recourse shall be had by the Guarantee d Party, any of its Affiliates or any Person purporting to claim by or through any of them or for the benefit of any of them, under any theory of liability (including, without limitation, by attempting to pierce a corporate or other veil or by attempting to compel any party to enforce any actual or purported right that they may have against any Person) against any former, current or future equity holders, controlling Person, directors, officers, employees, agents, general or limited partners, managers, members or Affiliates of any of Guarantor, Merger Sub or Parent, or any former, current or future equity holders, controlling Persons, directors, officers, employees, agents, general or limited partners, managers, members or Affiliates of any of the foregoing, excluding however the Guarantors, Parent, Merger Sub, Rollover Shareholders and their respective successors and assigns (each, a “Non-Recourse Party”, and collectively, the “Non-Recourse Parties”) in any way under or in connection with this Limited Guarantee , the Merger Agreement, any other agreement or instrument executed or delivered in connection with this Limited Guarantee or the Merger Agreement or the transactions contemplated hereby or thereby, except for claims (i) against the Guarantors and their respective successors and assignees under and to the extent provided in this Limited Guarantee , the Share Subscription Agreement, and the Rollover Agreement, in each case, pursuant to the terms thereof, (ii) against Parent or Merger Sub under and to the extent provided in the Merger Agreement, and (iii) against Parent and the Rollover Shareholders under and to the extent provided in the Voting Agreement and the Rollover Agreement (theclaims described in clauses(i) through(iii), collectively, the “Retained Claims”).

On February3, 2020, Advent provided a revised proposal to acquire Forescout for $32.00 per Share in cash. This proposal was accompanied by a revised draft of the Original Merger Agreement and the accompanying drafts of the equity commitment letter and limited guarantee . We refer to such original equity commitment letter and limited guarantee as the “Original Equity Commitment Letter” and the “Original Limited Guarantee ,” respectively. Among other things, Advent’s proposed revisions to the draft of the Original Merger Agreement included the removal of the “go-shop” provision but accepted Forescout’s proposal related to the amount of the termination fee payable by Forescout in order to accept a superior acquisition proposal from a third party after entry into the Original Merger Agreement with Advent.

07/20/2020 (FORESCOUT TECHNOLOGIES, INC)

Merger Sub or any other Person of any right of set-off or offset, will not relieve such Guarantor of any liability under this Guarantee (subject to such Guarantor’s Cap), and will not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Company. Notwithstanding any other provision of this Guarantee , the Merger Agreement or otherwise to the contrary, the Company covenants and agrees that each Guarantor may assert, as a defense to payment or performance by such Guarantor under this Guarantee , or as an affirmative claim against the Company or any of the Company Related Parties, any rights, remedies, set-offs and defenses that Parent or Merger Sub could assert pursuant to the terms of the Merger Agreement or pursuant to any applicable Law in connection with the Merger Agreement (other than any such rights, remedies, set-offs and defenses arising out of, due to, or as a result of the insolvency or bankruptcy of Parent or Merger Sub). To the extent that either of Parent or Merger Sub is relieved of any of its obligations and liabilities under the Merger Agreement, including its obligations to pay the Parent Termination Fee (other than due to, in connection with or as a result of the insolvency or bankruptcy of Parent or Merger Sub), the Guarantors shall be similarly relieved of the Parent Fee Obligations under this Guarantee . Notwithstanding anything to the contrary in this Guarantee or otherwise, any payment made by or on behalf of Parent or Merger Sub to the Company with respect to any Guarantee d Obligation shall reduce the total obligations of the Guarantors under this Guarantee accordingly on a pro rata basis, based on the percentages set forth on Schedule A hereto.

(f) No Obligation. The Company will not be obligated to file any claim relating to any of the Guarantee d Obligations if Parent or Merger Sub becomes subject to an insolvency, bankruptcy, reorganization or similar proceeding, and the failure of the Company to so file will not affect any Guarantor’s obligations under this Guarantee . If any payment to the Company in respect of any of the Guarantee d Obligations is rescinded or must otherwise be returned for any reason whatsoever, each Guarantor will remain fully liable under this Guarantee , subject to the terms hereof, with respect to the Guarantee d Obligations (subject to such Guarantor’s Cap) as if such payment had not been made. If the Company is prevented pursuant to applicable Law or otherwise from demanding or accelerating payment of any of the Guarantee d Obligations from Parent or Merger Sub by reason of any automatic stay or otherwise, the Company will be entitled to receive from each Guarantor, upon demand therefor, the sums that otherwise would have been due hereunder, in each case subject to such Guarantor’s Cap, had such demand or acceleration occurred.

7. Entire Agreement; Third Party Beneficiaries. This Guarantee , collectively with the Merger Agreement and the Equity Commitment Letter, constitutes the entire agreement with respect to the subject matter hereof and supersedes any and all prior discussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, among Parent, Merger Sub and the Guarantors or any of their Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, including, but not limited to, the Original Guarantee . This Guarantee is not intended to and will not confer upon any Person any rights or remedies under this Guarantee , other than the Parties and the Non-Recourse Parties, as provided in Section4 (which are third party beneficiaries of Section4). The rights of the Non-Recourse Parties set forth in Section4 of this Guarantee may be enforced by the Non-Recourse Parties without a requirement that such enforcement be at the direction of any Guarantor.

TORTIOUS CONDUCT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTEE . EACH PARTY ACKNOWLEDGES AND AGREES THAT (a)NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (b)IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (c)IT MAKES THIS WAIVER VOLUNTARILY; AND (d)IT HAS BEEN INDUCED TO ENTER INTO THIS GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION14.

(a) References to this Guarantee . Unless the context of this Guarantee otherwise requires, when a reference is made in this Guarantee to a Section, that reference is to a Section of this Guarantee .

(m) Joint Drafting. The Parties agree that they have been represented by legal counsel during the negotiation and execution of this Guarantee . Accordingly, they waive the application of any Law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document.

(2) If Party A requires Party B to provide full amount of guarantee (including but not limited to third party guarantee , property mortgage and pledge provided by Party B or any third party) before Party A extends the loan to Party B, Party B shall provide guarantee in line with Party A’s requirements and ensure the continuous validity of the guarantee . Both parties shall sign corresponding guarantee contracts and complete guarantee procedures, or otherwise Party A shall have the right to refuse to extend the loan.

09/26/2019 (ECMOHO Ltd)

(2) If Party A requires Party B to provide full amount of guarantee (including but not limited to third party guarantee , property mortgage and pledge provided by Party B or any third party) before Party A accepts the commercial draft issued by Party B, Party B shall provide guarantee in line with Party A’s requirements and ensure the continuous validity of the guarantee . Both parties shall sign corresponding guarantee contracts and complete guarantee procedures, or otherwise Party A shall have the right to refuse to accept the commercial draft issued by Party B.

In order to ensure the fulfillment of the contract between Party A and Shanghai Tonggou Information Technology Co., Ltd. (hereinafter referred to as the debtor), Party B is willing to provide Party A with the maximum joint and several liability guarantee . Party A and Party B, intending to be legally bound, hereby agree to enter into this Contract upon consensus through negotiation.

The Guarantor confirms that the address listed herein or otherwise kept in in the Bank for the purpose of the communication, or the address of the Guarantor or its service agent (if applicable) shall be the address of receiving the notice or document (including documents sent by a court or arbitration institution or in connection with a lawsuit or arbitration) hereunder or related to the Letter of Guarantee . For the Guarantor, any notice or document sent to, retained in or returned from the above-mentioned designated address, or the domicile or place of residence of the Guarantor will be deemed to have been served on the Guarantor.

7. The pledge hereunder is a guarantee other than any other warranty, mortgage, pledge or guarantee (no matter whether provided by the debtor of the guarantee d obligations) held by the Bank, and is not restricted or affected by such other warranty, mortgage, pledge or guarantee . No matter whether such other warranty, mortgage, pledge or guarantee exists or is waived or changed, our guarantee responsibilities hereunder will not be changed or be exempted from and the pledge hereunder will be still enforceable. The Bank may execute the pledge hereunder, or any other warranty or guarantee (no matter whether provided by the debtor of the guarantee d obligations), exercise any rights or require us or any other person to make a payment.

If Party B requests A to open an independent guarantee letter to the beneficiary, Party A has the right to independently review the claim documents based on the letter of guarantee . Whether the claim documents submitted by the beneficiary meet the requirements of the letter of guarantee shall be subject to the opinions of Party A. Party A is entitled to accept or reject the discrepancies in the claim form of the letter of guarantee . Where Party A believes that the documents submitted by the beneficiary meet the requirements of the Letter of Guarantee (including the case where Party A accepts the discrepancies in the claim documents), it has the right to directly deduct Party B’s account funds or advances for external compensation without prior notice to Party B or Party B’s consent.

8.2 Party A has the right not to accept Party B’s application for modification/cancellation of Letter of Guarantee . Party B has known that the modification and cancellation of the Letter of Guarantee must be confirmed by the beneficiary in writing to be executed.

8.3 Party B may affix Party B’s reserved seal to the application for modification/cancellation of the Letter of Guarantee . Party A and Party B unanimously approve the validity of the seal.

1.8 In respect of the business of the Letter of Guarantee /customs tax payment guarantee /ticket guarantee paid by the applicant for application for use of credit granting, the transfer of the interest or interest of the relevant guarantee letter does not affect the warranty obligation of the Guarantor under this guarantee . The Guarantor promises not to raise any defense on this ground.

In the case of a mortgage, pledge guarantee or other Guarantor at the same time, the Bank shall be entitled to claim the security right separately, successively or simultaneously to the mortgagor/pledgor or Guarantor (including the Guarantor); the Bank’s waiver, change or release of the mortgage or pledge guarantee , or the change or release of the other Guarantor’s guarantee responsibility, or the delay of claiming the right to the mortgagor/pledgor or other Guarantor shall not affect the Guarantor’s guaranty liability under the Letter of Guarantee . The Guarantor is still obliged to bears joint and several liability for all credited debts owed by the Applicant to the Bank according to the Letter of Guarantee .

6.10 The Guarantor fails to settle the guarantee d debts in accordance with the provisions of this Letter of Guarantee . The Bank has the right to freeze/deduct any funds of the accounts opened by the Guarantor opened at China Merchants Bank or entrust other financial institutions to freeze/deduct the funds of the accounts opened by the Guarantor in the institution (if the guarantee d debt is not RMB, the Bank has the right to purchase the exchange directly from the Guarantor’s RMB account according to the exchange rate announced by the Bank at the time of deduction), until all debts owed by the Applicant to the Bank under the Credit Agreement are paid off. The Bank is entitled to seek recourse for the shortfall from the Guarantor.

(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 . When a reference is made in this Limited Guarantee to a Section, such reference shall be to a Section of this Limited Guarantee unless otherwise indicated. The word “including” and words of similar import when used in this Limited Guarantee shall mean “including, without limitation,” unless otherwise specified.

11/23/2020 (China Biologic Products Holdings, Inc.)

2.50%** * The current annual charge for the Guarantee d Growth and Income Benefit VI Rider is 1.25% for a Single Life Guarantee and 1.40% for a Joint Life Guarantee . The annual charge for the Guarantee d Growth and Income Benefit II, III, IV, and V Rider is 1.10% for a Single Life Guarantee and 1.25% for a Joint Life Guarantee . The annual charge is 1.05% for Guarantee d Growth and Income Benefit Rider Contracts purchased prior to March15, 2013. The Rider charge may not be increased beyond the maximum of 2.00%. The charge is expressed as an annual percentage; it will be assessed on the Withdrawal Benefit Base and will be deducted from the Contract Value on a quarterly basis.

11/02/2020 (PENN MUTUAL VARIABLE ANNUITY ACCOUNT III)

2. Nature of Limited Guarantee . The Guarantee d Party shall not be obligated to file any claim relating to the Obligations in the event that Parent becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guarantee d Party to so file shall not affect the Guarantor’s obligation hereunder. In the event that any payment to the Guarantee d Party in respect of any Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to such Obligation (subject to the terms and conditions hereof) as if such payment had not been made. This Limited Guarantee is an unconditional and continuing guarantee of payment and not of collection. Notwithstanding any other provision of this Limited Guarantee , the Guarantee d Party hereby agrees that the Guarantor may assert, as a defense to any payment or performance by the Guarantor under this Limited Guarantee , any defense to such payment or performance that the Parent Parties may have under the terms of the Merger Agreement, other than defenses arising exclusively from the bankruptcy or insolvency of any Parent Party.

04/09/2020 (ASTA FUNDING INC)

the benefit of any of the foregoing, may recover any amount whatsoever under the Limited Guarantee . Notwithstanding anything that may be expressed or implied in this letter agreement, the Merger Agreement, the Debt Financing Commitments, any other Transaction Document, the Limited Guarantee or any other document or instrument delivered in connection herewith or therewith or in connection with the transactions contemplated hereby or thereby (including the termination or abandonment thereof) or otherwise, for the avoidance of doubt, in no event shall any Equity Investor have any obligation to make any payment or contribution hereunder at any time if the Closing does not occur.

07/14/2016 (Diamond Resorts International, Inc.)

2.Nature of Guarantee . Subject to the terms hereof, the Guarantors’ liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub. Without limiting the foregoing, the Guarantee d Party shall not be obligated to file any claim relating to the Guarantee d Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guarantee d Party to so file shall not affect the Guarantors’ obligations hereunder. In the event that any payment hereunder is rescinded or must otherwise be, and is, returned to the Guarantors for any reason whatsoever, the Guarantors shall remain liable hereunder with respect to the Guarantee d Obligations (subject to the Cap) as if such payment had not been made. This Limited Guarantee is a guarantee of payment and not of collection. Notwithstanding anything herein to the contrary, the Guarantors shall have the right to assert, and shall have the benefit of, any defenses to the payment of the Guarantee d Obligations that are available to Parent or Merger Sub under the Merger Agreement or as otherwise expressly provided in Section 3 hereof.

12/02/2020 (China Distance Education Holdings LTD)

3. Limited Guarantee . Concurrently with the execution and delivery of this Agreement, Mr. Zhengdong Zhu and Ms. Baohong Yin are executing and delivering to the Company a limited guarantee related to certain of Parent’s and Merger Sub’s obligations under the Merger Agreement (the “Limited Guarantee ”). The parties hereto hereby agree and acknowledge that the Company’s Specific Performance Rights (as defined below) pursuant to clause ‎(ii) of the first sentence of Section ‎5 hereof, the Company’s rights against Parent and Merger Sub pursuant to the Merger Agreement and the Company’s right to assert any other Retained Claim (as defined in the Limited Guarantee ) against the Non-Recourse Party(ies) (as defined in the Limited Guarantee ) against which such Retained Claim may be asserted as set forth in Section ‎8 of the Limited Guarantee , shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Sponsors or any other Non-Recourse Party in respect of any liabilities or obligations arising under, or in connection with, this Agreement, the Merger Agreement and the transactions contemplated hereby and thereby or the negotiation thereof, including in the event that Parent or Merger Sub breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Sponsors’ breach of their obligations under this Agreement.

2. NATURE OF GUARANTEE . The Guarantor’s liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment, or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub. Without limiting the foregoing, the Guarantee d Party shall not be obligated to file any claim relating to the Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guarantee d Party to so file shall not affect the Guarantor’s obligations hereunder. In the event that any payment from the Guarantor to the Guarantee d Party in respect of the Obligations is rescinded or must otherwise be, and is, returned to the Guarantor for any reason whatsoever, the Guarantor shall remain liable hereunder as if such payment had not been made. This Limited Guarantee is an unconditional guarantee of payment and performance and not of collectability. The Guarantor reserves the right to assert as a defense to such payment by the Guarantor under this Limited Guarantee any rights, remedies and defenses that Parent or Merger Sub may have with respect to payment of any Obligations under the Merger Agreement, other than defenses arising from the bankruptcy or insolvency of Parent or Merger Sub and other defenses expressly waived herein. This Limited Guarantee is a primary and original obligation of the Guarantor and is not merely the creation of a surety relationship, and the Guarantee d Party shall not be required to proceed against Parent or Merger Sub first before proceeding against the Guarantor.

09/29/2020 (SINA CORP)

3. Limitation of Guarantee . Anything herein or in any other Credit Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Credit Documents shall in no event exceed the amount that can be guarantee d by such Guarantor under the Bankruptcy Code or any applicable laws relating to fraudulent conveyances, fraudulent transfers or the insolvency of debtors.

04/02/2018 (BrightView Holdings, Inc.)

(b) Each party to this Guarantee acknowledges and agrees that any changes (in accordance with the provisions of the Credit Documents) in the identity of the persons from time to time comprising the Secured Parties gives rise to an equivalent change in the Secured Parties, without any further act. Upon such an occurrence, the persons then comprising the Secured Parties are vested with the rights, remedies and discretions and assume the obligations of the Secured Parties under this Guarantee . Each party to this Guarantee irrevocably authorizes the Collateral Agent to give effect to the change in Lenders contemplated in this Section12(b) by countersigning an Assignment and Acceptance.

12.11 Agents Under Security Documents and Guarantee . Each Secured Party hereby further authorizes the Administrative Agent or the Collateral Agent, as applicable, on behalf of and for the benefit of the Secured Parties, to be the agent for and representative of the Secured Parties with respect to the Collateral and the Security Documents. Subject to Section13.1, without further written consent or authorization from any Secured Party, the Administrative Agent or the Collateral Agent, as applicable, may execute any documents or instruments necessary to (a)release any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent (or any sub-agent thereof) under any Credit Document (i)upon the Final Maturity Date and the payment in full of all Obligations (except for contingent indemnification obligations in respect of which a claim has not yet been made), (ii) that is sold or to be sold or transferred as part of or in connection with any sale or other transfer permitted hereunder or under any other Credit Document to a Person that is not a Credit Party or in connection with the designation of any Restricted Subsidiary as an Unrestricted Subsidiary, (iii)if the property subject to such Lien is owned by a Credit Party, upon the release of such Credit Party from its Guarantee otherwise in accordance with the Credit Documents, (iv)as to the extent provided in the Security Documents or (v)if approved, authorized or ratified in writing in accordance with Section13.1; (b) release any Guarantor from its obligations under the Guarantee if such Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary) as a result of a transaction or designation permitted hereunder; (c)subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Credit Document to the holder of any Lien permitted under clauses (v), (vi) (solely with respect to Section10.1(d)), (vii), and (ix)of the definition of Permitted Lien; or (d)enter into subordination or intercreditor agreements with respect to Indebtedness to the extent the Administrative Agent or the Collateral Agent is otherwise contemplated herein as being a party to such intercreditor or subordination agreement, including the Intercreditor Agreement.

4. Sponsor Guarantee . Concurrently with the execution and delivery of this commitment letter, Sponsor is executing and delivering to the Company a Sponsor Guarantee (the “Sponsor Guarantee ”).

07/25/2016 (SKULLCANDY, INC.)

(a) The Guarantor agrees that the Company may, at any time and from time to time, without notice to or further consent of the Guarantor, make any agreement with Parent or Acquisition Sub for the extension, renewal, payment, compromise, discharge, or release of any portion of the Equity Commitment, in whole or in part, or for any modification of the terms thereof or of any agreement between the Company and Parent or Acquisition Sub without in any way impairing or affecting this 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 of the Company to assert any claim or demand or to enforce any right or remedy against Parent or Acquisition Sub with respect to payment of the Equity Commitment; (ii)any agreement with Parent or Acquisition Sub with respect to (A)any change in the time, place or manner of payment of any portion of the Equity Commitment, (B)any rescission, waiver, compromise, consolidation, or other amendment or modification of any of the terms or provisions of the Merger Agreement or (C)any other agreement evidencing, securing, or otherwise executed in connection with any portion of the Equity Commitment; (iii)any change in the corporate existence, structure or ownership of Parent or Acquisition Sub; (v)any insolvency, bankruptcy, reorganization, or other similar proceeding affecting Parent or Acquisition Sub; (vi)the existence of any claim, set off or other right that the Guarantor may have at any time against Parent or Acquisition Sub, whether in connection with the Equity Commitment or otherwise; or (vii)the adequacy of any other means the Company may have of obtaining payment of any portion of the Equity Commitment.

(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 Company. The Guarantor waives promptness, diligence, notice of the acceptance of this Guarantee and of the Equity Commitment, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any Equity Commitment payment obligation incurred and any and all other notices of any kind (except for notices required to be provided to Parent and Acquisition Sub under the Merger Agreement), 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 Acquisition Sub with respect to the Equity Commitment, and all suretyship defenses generally (whether at law or in equity), other than breach by the Company of this Guarantee . The Guarantor acknowledges that, as an Affiliate of Parent and Acquisition Sub, it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Guarantee are knowingly made in contemplation of such benefits and after the advice of counsel.

All obligations, liabilities and indebtedness among the Borrower and the Guarantors of any nature whatsoever and all security therefor (the Intercorporate Indebtedness) are hereby assigned and transferred to the Agent as continuing and collateral security for the Guarantors’ obligations under this Guarantee .Until notice by the Agent that the Guarantee d Obligations are due and payable, the Guarantors may receive payments in respect of the Intercorporate Indebtedness in accordance with its terms.The Guarantors shall not assign all or any part of the Intercorporate Indebtedness to any Person other than the Agent or the Lender.

03/02/2020 (Tilray, Inc.)

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• Federal Circuit Reversal in Assignment Clause Case Highlights Importance of Contract Language in Intellectual Property Ownership

By Jeffrey Whittle, CLP ; Karthika Perumal, Ph.D., CLP ; & Sam Savanich, CLP-A

In a split opinion issued Tuesday , and based on language in an assignment clause of a contract, the Federal Circuit overturned a district court's summary judgment that Core Optical lacked standing to sue Nokia, Cisco, and ADVA for infringement.

The case, involving a fiber optic patent, centers on the interpretation of the phrase "entirely on my own time" within an assignment clause of the inventor's contractual agreement with his former employer, TRW Inc.

Nokia, Cisco, and ADVA contended that Dr. Mark Core's assignment of his patent rights to Core Optical was invalid because these rights allegedly had been automatically assigned to Dr. Core's employer, TRW, at the time of the invention. The inventor's contract with TRW stipulated that any inventions developed during work hours were to be assigned to the company, while inventions developed entirely on his “own time” remained Dr. Core’s property.

Initially, the lower court granted Nokia and the defendants summary judgment, ruling that the invention was developed as part of the Dr. Core’s research, funded by TRW, and was at least in part “TRW time” and not “entirely” Dr. Core’s “own time.” Therefore, this court concluded that the patent was automatically assigned to TRW, and Core Optical, Dr. Core’s company, lacked standing to sue.

The Federal Circuit majority, however, decided on appeal that it was not clear if the Ph.D. research conducted by Dr. Core constituted the inventor's own time. On one hand, Dr. Core was free to use particular hours or days for his research with no accountability to TRW; and, on the other hand, he worked on projects connected to TRW’s business on TRW-funded fellowship, with reporting obligations to TRW. Therefore, the Federal Circuit vacated the judgment and remanded the case back to the district court for further proceedings, thereby allowing Dr. Core to proceed with his patent infringement lawsuit.

The majority opinion noted, “[b]oth Core Optical’s and Nokia's interpretations of how the years-long, TRW-funded research should be treated under the 1990 invention agreement are plausible based on the undisputed facts presented. However, which interpretation prevails has not been determined, acknowledging that the contract language does not have an unambiguous meaning when applied to these facts.”

In dissent, U.S. Circuit Court Judge Haldane Robert Mayer argued that the lower court was correct in ruling that the inventor did not develop the fiber optic patent on his own time.

This majority decision underscores the complexities and nuances surrounding intellectual property rights and the importance of clear contractual terms regarding intellectual property issues, especially for intellectual property developed by an individual during non-traditional employment, such as employees permitted to pursue research or consulting projects. Care should be taken when drafting assignment and other intellectual property related language to reduce risk of a finding of ambiguity as in this instance.

[ View source .]

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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