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laws and defenses are applicable, a Guarantor may have no liability or decreased liability under its Note Guarantee
depending on the amounts of its other obligations and applicable law. Limitations on the enforceability of judgments
obtained in New York courts in such jurisdictions could limit the enforceability of any Note Guarantee against any
Guarantor.
Furthermore, payments under the Note Guarantees in certain jurisdictions may be subject to foreign exchange controls or
other administrative approvals, which may result in further uncertainty regarding the enforcement of your rights under
such Note Guarantee and could result in you not receiving any amounts under such Note Guarantee.
Although laws differ in various jurisdictions, in general, under fraudulent conveyance and other laws, a court could
subordinate, reduce or void the Note Guarantees and, if payment had already been made under a Note Guarantee, require
that the recipient return the payment to the relevant Guarantor, if the court found that:
• the relevant Note Guarantee was incurred with actual intent to hinder, delay or defraud current or future creditors or
shareholders of the Guarantors with a desire to prefer some creditors over others or the relevant obligor was
insolvent when it granted the relevant Note Guarantee or, in certain jurisdictions, if the recipient was aware that the
relevant obligor was insolvent when it granted the relevant Note Guarantee;
• the Guarantor did not receive fair consideration or reasonably equivalent value for the relevant Note Guarantee and
the Guarantor was: (i) insolvent or rendered insolvent because of the relevant Note Guarantee or subsequently
became insolvent for other reasons; (ii) undercapitalized or became undercapitalized because of the relevant Note
Guarantee; or (iii) intended to incur, or believed that it would incur, indebtedness beyond its ability to pay at
maturity or create an imbalance between the other financial burdens assumed by the Guarantors;
• the relevant Note Guarantees were held to exceed the corporate objects of such obligor or the credit lines which
effectively benefit to such obligor or not to be in the best interests or for the corporate benefit of the relevant obligor;
or
• the amount paid or payable under the relevant Note Guarantee was in excess of the maximum amount permitted
under applicable law.
The measures of insolvency for purposes of fraudulent transfer laws vary depending upon applicable governing law.
Generally, an entity would be considered insolvent if, at the time it incurred indebtedness:
• the sum of its debts, including contingent liabilities, is greater than the fair value of all its assets;
• the present fair saleable value of its assets is less than the amount required to pay the probable liability on its
existing debts and liabilities, including contingent and prospective liabilities, as they become due; or
• it cannot pay its debts as they become due.
The Group cannot assure you which standard a court would apply in determining whether a Guarantor was “insolvent” at
the relevant time or that, regardless of the method of valuation, a court would not determine that a Guarantor was
insolvent on that date, or that a court would not determine, regardless of whether or not a Guarantor was insolvent on the
date its Note Guarantee was issued, that payments to holders of Notes constituted preferences, fraudulent transfers or
conveyances on other grounds.
The liability of each Guarantor under its Note Guarantee will be limited to the amount that will result in such Note
Guarantee not constituting a preference, fraudulent conveyance or improper corporate distribution or otherwise being set
aside. However, there can be no assurance as to what standard a court will apply in making a determination of the
maximum liability of each Guarantor. There is a possibility that the entire Note Guarantee may be set aside, in which
case the entire liability may be extinguished.
If a court decided that a Note Guarantee was a preference, fraudulent transfer or conveyance and voided such Note
Guarantee, or held it unenforceable for any other reason, you may cease to have any claim in respect of the relevant
Guarantor and would be a creditor solely of the Issuer and, if applicable, of any other Guarantor under the relevant Note
Guarantee which has not been declared void. In the event that any Note Guarantee is invalid or unenforceable, in whole
or in part, or to the extent the agreed limitation of the Note Guarantee obligations apply, the Notes would be effectively
subordinated to all liabilities of the applicable Guarantor, and if the Group cannot satisfy its obligations under the Notes,
or any Note Guarantee is found to be a preference, fraudulent transfer or conveyance or is otherwise set aside, it cannot
assure you that it can ever repay in full any amounts outstanding under the Notes, or that in turn, the Issuer can ever
repay in full any amounts outstanding under the Notes.
