FIRST SOLAR HOLDINGS GMBH
FIRST SOLAR GMBH
FIRST SOLAR MANUFACTURING GMBH
as German Guarantors
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
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Page
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Clause
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Definitions and
Interpretation
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2
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Guarantee (
Garantie )
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4
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Protective
Provisions
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5
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Representations
and Warranties
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7
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Payments
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7
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Costs
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7
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Limitation on
Enforcement
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8
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Additional
German Guarantors
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11
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Miscellaneous
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11
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Notices
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12
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Applicable law;
Jurisdiction
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14
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Schedule
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Additional
German Guarantor Accession Agreement
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15
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16
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THIS GUARANTEE
(the Guarantee )
is made on 8 September 2009
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BY:
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(1)
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FIRST SOLAR MANUFACTURING
GMBH a
limited liability company ( Gesellschaft mit beschränkter
Haftung ) organised under the laws of the Federal Republic of
Germany, registered in the commercial register (
Handelsregister ) of the local court ( Amtsgericht )
of Frankfurt (Oder), Germany, under registration number HRB 11116
as assignor
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(
First Solar Manufacturing GmbH );
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(2)
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FIRST SOLAR HOLDINGS GMBH
, a limited liability
company ( Gesellschaft mit beschränkter Haftung )
organised under the laws of the Federal Republic of Germany,
registered in the commercial register ( Handelsregister ) of
the local court ( Amtsgericht ) of Mainz, Germany, under
registration number HRB 40090,
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(
First Solar Holdings GmbH ); and
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(3)
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FIRST SOLAR GMBH
, a limited liability
company ( Gesellschaft mit beschränkter Haftung )
organised under the laws of the Federal Republic of Germany,
registered in the commercial register ( Handelsregister ) of
the local court ( Amtsgericht ) of Mainz, Germany, under
registration number HRB 8855,
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(
First Solar GmbH ),
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in
favour of:
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(1)
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JPMORGAN CHASE BANK, N.A.
, , a banking
association organised under the laws of the United States with its
main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A.
acting through its London Branch, at 125 London Wall, London EC2Y
5AJ as assignee and administrative agent and trustee for the other
Secured Parties (as defined below) (the Administrative Agent
);
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and
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(2)
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the
other SECURED PARTIES (as defined below).
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First Solar Manufacturing GmbH,
First Solar Holdings GmbH and First Solar GmbH are hereinafter
individually referred to as an Original German Guarantor and
collectively referred to as the Original German Guarantors
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The
German Guarantors (as defined below), the Administrative Agent and
the other Secured Parties (as defined below) are hereinafter
collectively referred to as the Parties .
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WHEREAS:
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(A)
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First Solar Inc. as company (the
Company ) and, amongst others, First Solar Manufacturing
GmbH as borrower entered into a New York law governed
US$300,000,000 credit agreement dated 4 September 2009 (the
Credit Agreement ) with the Administrative Agent and certain
credit institutions as original lenders together with each new
lender supplement, and assignment and assumption agreement relating
thereto and any and each other agreement or instrument amending,
modifying, extending, restating or supplementing it from time to
time and providing for up to US$100,000,000 additional Incremental
Facilities (as defined below).
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(B)
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The
Company entered into a New York law governed guarantee and
collateral agreement in favour of, amongst others, the
Administrative Agent dated 4 September 2009 (the Guarantee
and Collateral Agreement ) pursuant to which, inter alia,
certain subsidiaries of the Company guaranteed prompt and complete
payment of the Company’s obligations under, inter alia, the
Credit Agreement.
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(C)
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It
is a condition to the Lenders (as defined in the Credit Agreement)
making the credit facilities available to the Borrowers (as defined
in the Credit Agreement) that the German Guarantors enter into this
Guarantee.
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IT
IS AGREED as follows:
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1.
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DEFINITIONS AND
INTERPRETATION
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1.1
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Definitions
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In
this Agreement:
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Additional German
Guarantor shall have the meaning ascribed to
that term in Clause 8 (Additional German Guarantors)
below.
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Affiliate shall have the meaning ascribed to
that term in the Credit Agreement.
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Agent means:
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(a)
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the
Syndication Agent;
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(b)
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the
Documentation Agent; and
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(c)
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the
Administrative Agent.
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Borrower shall have the meaning ascribed to
that term in the Credit Agreement.
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Borrowing Subsidiaries
Obligations shall have the meaning ascribed to
that term in the Guarantee and Collateral Agreement.
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Borrowing Subsidiary
shall have the meaning
ascribed to that term in the Credit Agreement.
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Business Day means a day (other than a Saturday
or Sunday) on which banks are open for general business in
Frankfurt am Main, Germany.
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Company Obligation
shall have the meaning
ascribed to that term in the Guarantee and Collateral
Agreement.
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Documentation Agent
means The Royal Bank of
Scotland plc.
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German Borrower
means First Solar
Manufacturing GmbH or any other person or entity that is organised
under the laws of the Federal Republic of Germany that becomes a
Borrowing Subsidiary under or in connection with the Credit
Agreement.
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German Guarantor
means any Original
German Guarantor and any Additional German Guarantor.
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German Obligor
means the German
Borrower or any German Guarantor.
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2
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German Subsidiary
Obligations means the collective reference to
the unpaid principal of and interest on the Loans and Reimbursement
Obligations and all other obligations and liabilities of the German
Borrower,
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(a)
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including, without limitation any
obligation or liability of the German Borrower for any damage claim
or claims resulting from unjust enrichment (or any equivalent in
any jurisdiction) in connection with any cost, loss or liability
incurred by any of the Secured Parties, if any of such obligations
or liabilities of the German Borrower under or in connection with
the Credit Agreement and/or any other Loan Document becomes
unenforceable, invalid or illegal; and further
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(b)
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including, without limitation,
interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any petition
for commencement of insolvency proceedings, or the commencement of
any insolvency, reorganization or like proceeding, relating to the
German Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding),
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to
the Administrative Agent or any Lender (or, in the case of any
Specified Swap Agreement, any Affiliate of any Lender) or any other
Secured Party, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit
Agreement, this Guarantee, the other Loan Documents, any Letter of
Credit, any Specified Swap Agreement or any other document made,
delivered or given in connection with any of the foregoing, in each
case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or to the Lenders that are
required to be paid by the German Borrower pursuant to the terms of
any of the foregoing agreements).
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Guarantor Obligation
shall have the meaning
ascribed to that term in the Guarantee and Collateral
Agreement.
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Incremental Facility
means an incremental
facility provided or to be provided by a Lender subject to and
under the terms of the Credit Agreement in an aggregate amount of
up to US$100,000,000.
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Lender shall have the meaning ascribed to
that term in the Credit Agreement.
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Letter of Credit
shall have the meaning
ascribed to that term in the Credit Agreement.
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Loan shall have the meaning ascribed to
that term in the Credit Agreement, including (without limitation)
any Incremental Facility.
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Loan Document
shall have the meaning
ascribed to that term in the Credit Agreement.
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Loan Party shall have the meaning ascribed to
that term in the Credit Agreement.
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Material Adverse Effect
shall have the meaning
ascribed to that term in the Credit Agreement.
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Person means an individual, partnership,
corporation, limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture, any
governmental authority or other entity of whatever
nature.
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Reimbursement Obligation
shall have the meaning
ascribed to that term in the Credit Agreement.
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Secured Party
means an Agent, the
Lenders, any Affiliate of a Lender and the Issuing Lender and any
Swap Counterparty to which Company Obligations, Borrowing
Subsidiaries Obligations or Guarantor Obligations are
owed.
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Specified Swap Agreement
shall have the meaning
ascribed to that term in the Credit Agreement.
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Subsidiary means as to any Person, a
corporation, partnership, limited liability company or other entity
of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both,
by such Person. And unless otherwise qualified, all references to a
“Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the
Company.
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Swap Counterparty
means any party to a
Specified Swap Agreement.
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Syndication Agent
means Credit Suisse,
Cayman Islands Branch.
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1.2
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Interpretation
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(a)
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Where the context so admits, the
singular includes the plural and vice versa .
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(b)
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The
headings in this Guarantee are for convenience only and are to be
ignored in construing this Guarantee.
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(c)
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Any
reference in this Guarantee to a defined document is a reference to
that defined document as amended, varied, novated or supplemented
from time to time.
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(d)
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Any
reference to a Party or other person (including any Guarantor or
Borrower or the German Borrower or any Loan Party and any Secured
Party) includes its respective successor(s) in law (including any
universal successor ( Gesamtrechtsnachfolger ) of that
person by way of merger ( Verschmelzung ), any other
reorganisation contemplated in the German Transformation Act (
Umwandlungsgesetz ) or otherwise) and any assign(s) and
transferee(s) of that person and, to the extent legally possible,
any legal provision to the contrary is waived.
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(e)
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Unless otherwise defined herein or
unless the context otherwise requires, terms defined or referred to
in the Credit Agreement and/or the Guarantee and Collateral
Agreement shall have the same meaning when used herein. In case of
any discrepancy, the Credit Agreement shall prevail.
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2.
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GUARANTEE ( GARANTIE
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Each German Guarantor irrevocably
and unconditionally jointly and severally (
gesamtschuldnerisch ) guarantees ( garantiert ) by
way of an independent payment obligation ( selbständiges
Zahlungsversprechen ) to each Secured Party to pay to that
Secured Party within 5 (five) Business Days of receipt by it
of a written demand by a Secured Party (or the Administrative Agent
on its behalf) the amount of principal, interest, costs, expenses
or other amounts demanded in such demand letter, which shall state
that the sum demanded by such Secured Party under or in connection
with any German Subsidiary Obligation has not been fully and
irrevocably paid by a German Borrower.
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3.
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PROTECTIVE PROVISIONS
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3.1
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Continuing and independent
guarantee
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This guarantee is independent and
separate from the obligations of any Borrower and is a continuing
guarantee which will extend and include any and all sums owing by
any German Borrower under the Loan Documents, regardless of any
intermediate payment or discharge in whole or in part.
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The
guarantee shall extend to any additional obligations of a German
Borrower resulting from any amendment, novation, supplement,
extension, restatement or replacement of any Loan Document,
including without limitation any extension of or increase in any
facility or interest or the addition of any new facility under any
Loan Document.
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3.2
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Reinstatement
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If
any payment made to or any discharge given by any German Obligor
made to a Secured Party (whether in respect of the obligations of a
Loan Party or any security for those obligations or otherwise) is
avoided or reduced as a result of insolvency or any similar
event:
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(a)
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the
liability of each German Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
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(b)
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each Secured Party shall be entitled
to recover the value or amount of that security or payment from
each German Obligor, as if the payment, discharge, avoidance or
reduction had not occurred.
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(a)
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The
obligations of each German Guarantor under Clause 2 will not be
affected by an act, omission, matter or thing which relates to the
principal obligation (or purported obligation) of any German
Borrower and which would reduce, release or prejudice any of its
obligations under this Clause 2, including without limitation any
personal defences of any German Borrower ( Einreden des
Hauptschuldners ) or any right of revocation (
Anfechtung ) or set-off ( Aufrechnung ) of any German
Borrower. Set-off may, however, affect the obligations of a German
Guarantor, if such relevant German Guarantor is in the position to
discharge its obligations under this Guarantee by way of set-off
with claims which are undisputed ( unbestritten ) by the
Secured Parties or which have been the subject of a final court
judgment ( rechtskräftig ) vis-à-vis the Secured
Parties.
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(b)
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The
obligations of each German Guarantor under this Clause 2 are
independent from any other security or guarantee which may have
been or will be given to the Secured Parties. In particular, the
obligations of each German Guarantor under this Clause 2 will not
be affected by any of the following:
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(i)
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a
release or any deferral ( Stundung ), waiver or consent
granted to any other Loan Party from or in respect of its
obligations under or in connection with any Loan Document, unless
the relevant amount requested from a German Guarantor under this
Guarantee relates to an amount owed by the German Borrower for
which such release, deferral, waiver or consent has been granted,
made or given.;
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(ii)
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the
taking, variation, compromise, exchange, renewal or release of or
refusal or neglect to perfect, take up or enforce any rights
against or security over assets of,
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any
Loan Party or any other person or any failure to realise the full
value of any security;
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(iii)
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any
incapacity or lack of power, authority or legal personality,
dissolution or a deterioration of the financial condition of any
other Loan Party; or
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