Common use of Co-Borrowers Clause in Contracts

Co-Borrowers. (a) Each Borrower accepts joint and several liability hereunder in consideration of the financial accommodation to be provided by the Administrative Agent, the Lenders and the Issuing Banks under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of each Borrower to accept joint and several liability for the obligations of each Borrower. (b) Each Borrower shall be jointly and severally liable for the Obligations, regardless of which Borrower actually receives the Loans hereunder or the amount of the Obligations received or the manner in which the Administrative Agent or any Lender accounts for the Obligations on its books and records. Each Borrower’s obligations with respect to Loans made to it, and each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder, with respect to Loans or LC Obligations made to and other Obligations owing by the Borrowers hereunder, shall be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrower. (c) Each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to, Letters of Credit issued on behalf of, and other Obligations owing by the Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (A) the validity or enforceability, avoidance or subordination of the obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the obligations of any other Borrower, (B) the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or any other security therefor, or the absence of any other action to enforce the same, (C) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender with respect to any provision of any instrument evidencing the obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent or any Lender, (D) the failure by the Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Borrower, (E) the Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code of the United States, of the application of Section 1111(b)(2) of the Bankruptcy Code of the United States, (F) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code of the United States, (G) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the obligations of any other Borrower under Section 502 of the Bankruptcy Code of the United States, or (H) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to the Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement and the other Loan Documents shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations or any other liability of any Borrower to the Administrative Agent or any Lender. (d) Upon the occurrence and during the continuation of any Event of Default, the Administrative Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations. (e) Each Borrower hereby irrevocably appoints the Administrative Borrower as the borrowing agent and attorney-in-fact for the Borrowers, which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed in the place of the Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i) to provide to the Administrative Agent and receive from the Administrative Agent all notices with respect to Loans obtained for the -96

Co-Borrowers. (a) Each Borrower accepts hereby accepts, but only to the extent not prohibited by applicable insolvency laws, not merely as a surety but also as a co-debtor, joint and several liability hereunder in consideration with the other Borrowers, with respect to the payment and performance of all of the financial accommodation Obligations, it being the intention of the parties hereto that all the Obligations shall be joint and several obligations of each Borrower without preferences or distinctions among them. If and to be provided the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower hereby agrees that it will not, without Lender's prior written consent, enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by the Administrative Agent, the Lenders and the Issuing Banks it hereunder or under this Agreement and any of the other Loan Documents, any payments made by it to Lender with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Lender may from time to time, without exonerating or releasing any Borrower in any way under this Agreement, (a) take such further or other security or securities for the mutual benefitObligations or any part thereof as it may deem proper, directly and indirectly, of each Borrower and in consideration of the undertakings of each Borrower to accept joint and several liability for the obligations of each Borrower. or (b) release, discharge, abandon or otherwise deal with or fail to deal with any Borrower or guarantor of the Obligations or any collateral, security or securities therefor or any part thereof now or hereafter held by the Lender or (c) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as it may consider expedient or appropriate in its sole discretion. Each Borrower agrees that until each and every one of the covenants and agreements of the Loan Documents is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Borrower's undertakings hereunder shall not be released, in whole or in part, by any action or thing that might, but for this Agreement, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver or omission by Lender or its failure to proceed promptly or otherwise, or by reason of any action taken or omitted by Lender whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Borrower or by reason of any further dealings between any Borrower on the one hand and Lender, on the other hand or any other guarantor or surety, and each Borrower hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description that it may have or may exist based upon, and each Borrower shall be jointly and severally liable deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers. Upon the bankruptcy or winding up or other distribution of assets of any Borrower or of any surety or guarantor for the any Obligations, regardless the rights of which Lender against any Borrower actually receives or any other guarantor of the Loans hereunder Obligations shall not be affected or impaired by the omission of Lender to prove its claim, or to prove the full claim, as appropriate, and the Lender may prove such claims as it sees fit and may refrain from proving any claim and in its discretion may value as it sees fit or refrain from valuing any security held by it without in any way releasing, reducing or otherwise affecting the liability to the Lender of any Borrower. Each Borrower hereby unconditionally and irrevocably waives, unless expressly provided for herein or under the Loan Documents: (i) notice of acceptance hereof, (ii) notice of any loans or other financial accommodations made or extended under this Agreement, or the creation or existence of any of any additional Obligations, (iii) notice of the amount of the Obligations, subject, however, to such Borrower's rights hereunder; (iv) notice of any adverse change in the financial condition of any Borrower or of any other fact that might increase such Borrower's risk hereunder; (v) notice of presentment for payment, demand, protest, dishonor and notice thereof; (vi) notice of any Default or Event of Default; (vii) all diligence in collection or protection of or realization upon the Obligations received or the manner in which the Administrative Agent or any Lender accounts part thereof, any obligation hereunder, or any security for the Obligations on its books and records. Each Borrower’s obligations with respect to Loans made to it, and each Borrower’s obligations arising as a result any of the joint foregoing, (viii) all rights to enforce any remedy that the Lender may have against any Borrower or any other guarantor; and several liability of such (ix) all other notices and demands to which any Borrower hereunder, with respect to Loans or LC Obligations made to and other Obligations owing by the Borrowers hereunder, shall might otherwise be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrowerentitled. (c) Each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to, Letters of Credit issued on behalf of, and other Obligations owing by the Borrowers hereunder shall, to To the fullest extent permitted by applicable law, be unconditional irrespective of (A) each Borrower hereby waives the validity right by statute or enforceability, avoidance or subordination of the obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the obligations of any other Borrower, (B) the absence of any attempt otherwise to collect the Obligations from any other Borrower, any other guarantor, or any other security therefor, or the absence of any other action to enforce the same, (C) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender with respect to any provision of any instrument evidencing the obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent or any Lender, (D) the failure by the Administrative Agent or any require Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Borrower, (E) the Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code of the United States, of the application of Section 1111(b)(2) of the Bankruptcy Code of the United States, (F) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code of the United States, (G) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the obligations of any other Borrower under Section 502 of the Bankruptcy Code of the United States, or (H) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to the Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement and the other Loan Documents shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations or any other liability of any Borrower to the Administrative Agent or any Lender. (d) Upon the occurrence and during the continuation of any Event of Default, the Administrative Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding institute suit against any other Borrower or any other Personguarantor or to exhaust any rights and remedies which Lender has or may have against any other Borrower or any other guarantor. Each Borrower further waives any defense arising by reason of any disability or other defense (other than the defense that the Obligations shall have been indefeasibly and fully and finally paid and the commitments hereunder have been terminated) of such Borrower. No Borrower shall be released or discharged, either in whole or in part, by Lender's failure or delay to (A) perfect or continue the perfection of any lien or security interest in any collateral that secures the Obligations, or (B) protect the property covered by such lien or security interest. To the maximum extent permitted by law, each Borrower hereby waives: (I) any rights to assert against Lender any defense (legal or equitable), setoff, counterclaim, or claim that such Borrower may now or at any time hereafter have against any security other Borrower or any other party liable to Lender on account of or with respect to the Obligations (other than the defense that the Obligations shall have been fully and finally paid and the commitments hereunder have been terminated); (II) any defense, setoff, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future sufficiency, validity, or enforceability of the Obligations (other than the defense that the Obligations shall have been fully and finally paid and the commitments hereunder have been terminated); (III) any defense arising by reason of any claim or defense based upon an election of remedies by Lender; (IV) any right to assert against Lender any claim or defense in relation to any requirement upon Lender to marshal any collateral for the benefit of such Borrower or any other person; (V) the benefit of any statute of limitations affecting such Borrower's liability hereunder or the enforcement thereof. In addition, each Borrower hereby waives, until such time as the Obligations are fully and finally paid and the commitments hereunder are terminated, any right to proceed against any other Borrower or any other guarantor, now or hereafter, for contribution, indemnity, reimbursement, or any other suretyship rights and claims (irrespective of whether direct or indirect, liquidated or contingent), with respect to the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation also hereby waives any right to marshal proceed or to seek recourse against or with respect to any assets in favor property or asset of any other Borrower or against any other guarantor. Each Borrower hereby agrees that, in light of the waivers contained in this Section, such Borrower shall not be deemed to be a "creditor" (as that term is defined in the Bankruptcy Code or in payment otherwise) of any other Borrower or any other guarantor, whether for purposes of the application of Sections 547 or 550 of the United States Bankruptcy Code or otherwise. To the maximum extent permitted by law, each Borrower waives any duty on the part of the Lender to disclose to such Borrower any facts the Lender may now or hereafter know about any other Borrower, regardless of whether the Lender has reason to believe that any such facts materially increase the risk beyond that which such Borrower intends to assume, or has reason to believe that such facts are unknown to such Borrower, or has a reasonable opportunity to communicate such facts to such Borrower since such Borrower acknowledges that such Borrower is fully responsible for being and keeping informed of the financial condition of any other Borrower and all of the Obligationscircumstances bearing on the risk on nonpayment of any Obligations hereunder. (e) Each The obligations of each Borrower hereby irrevocably appoints the Administrative Borrower as the borrowing agent and attorney-in-fact for the Borrowers, which appointment hereunder shall remain in full force and effect unless without regard to, and until shall not be affected or impaired by the Administrative Agent following, any of which may be taken without the consent of, or notice to, such Borrower, nor shall any of the following give any Borrower any recourse or right of action against the Lender: (W) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to any Borrower, or any guarantor (which term shall include any other party at any time directly or contingently liable for any of the Borrowers' obligations under the Loan Documents) or any affiliate of any Borrower, or any action taken with respect to this Agreement or any of the other Loan Documents by any trustee or receiver, or by any court, in any such proceeding, whether or not such Borrower shall have received prior written had notice signed or knowledge of any of the foregoing; (X) any release or discharge of any Borrower from its liability under any of the Loan Documents or any release or discharge of any endorser or guarantor or of any other party at any time directly or contingently liable for the Obligations; (Y) any subordination, compromise, release (by operation of law or otherwise), discharge, compound, collection or liquidation of any or all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed Collateral or other property described in the place any of the Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i) to provide to the Administrative Agent and receive from the Administrative Agent all notices Loan Documents or otherwise in any manner, or any substitution with respect to Loans obtained for thereto; and (Z) any acceptance of partial performance of the -96Obligations.

Co-Borrowers. Notwithstanding anything herein to the contrary, the Borrower, upon 15 Business Days prior written notice to the Administrative Agent (aor such shorter period as reasonably agreed by the Administrative Agent), may cause any Subsidiary Guarantor on or after the Closing Date by written election to the Administrative Agent to become a co-borrower (each such Subsidiary Guarantor, a “Co-Borrower”, and, together with the Borrower, the “Co-Borrowers”) under each of the Facilities hereunder on a joint and several basis (such date, the “Co-Borrower Effective Date”); provided that such Loan Party shall (i) execute a joinder to this Agreement in form and substance reasonably satisfactory to the Required Lenders assuming all obligations of a Co-Borrower hereunder, which the Administrative Agent shall have acknowledged and accepted as provided therein (a “Co-Borrower Joinder”), (ii) at least five Business Days prior to such Co-Borrower Effective Date, provide to the Administrative Agent and the Lenders all documentation and other information required by United States regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws, including without limitation Title III of the USA Patriot Act, that shall be reasonably requested by the Administrative Agent in writing at least 10 Business Days prior to the consummation of such joinder, (iii) provide to the Administrative Agent and the Lenders, if such Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification and (iv) be a wholly owned Domestic Subsidiary of the Borrower. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any amendment to this Agreement or to any other Loan Document as may be necessary or appropriate in order to establish any such additional Co-Borrower pursuant to this Section 1.11 and such technical amendments, and other customary amendments with respect to provisions of this Agreement relating to taxes for borrowers, in each case as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection therewith. Each Co-Borrower accepts agrees that it is jointly and severally liable for the obligations of the Borrower and each other Co-Borrower hereunder with respect to any Class of Loans on an individual tranche basis, including with respect to the payment of principal of and interest on all Loans on an individual tranche basis and the payment of fees and indemnities and reimbursement of costs and expenses. Each Co-Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Lenders Collateral Agent and the Issuing Banks Lenders under this Agreement and the other Loan DocumentsAgreement, for the mutual benefit, directly and indirectly, of each Borrower of the Co-Borrowers and in consideration of the undertakings of each Borrower of the Co-Borrowers to accept joint and several liability for the obligations of each of them. Each Co-Borrower. (b) Each Borrower shall be , jointly and severally liable for severally, hereby irrevocably and unconditionally accepts, as a co-debtor, joint and several liability with each other Co-Borrower, with respect to the payment and performance of all of the Obligations, regardless of which Borrower actually receives it being the Loans hereunder or the amount intention of the parties hereto that all Obligations received or the manner in which the Administrative Agent or any Lender accounts for the Obligations on its books and records. Each Borrower’s obligations with respect to Loans made to it, and each Borrower’s obligations arising as a result of shall be the joint and several liability of such Borrower hereunder, with respect to Loans or LC Obligations made to and other Obligations owing by the Borrowers hereunder, shall be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrower. (c) Each Borrower’s obligations arising as a result all of the joint Co-Borrowers without preferences or distinction among them. If and several liability of such Borrower hereunder with respect to Loans made to, Letters of Credit issued on behalf of, and other Obligations owing by the Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (A) that the validity Borrower or enforceability, avoidance or subordination any of the obligations of Co-Borrowers shall fail to make any other Borrower or of any promissory note or other document evidencing all or any part of the obligations of any other Borrower, (B) the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or any other security therefor, or the absence of any other action to enforce the same, (C) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender payment with respect to any provision of the Obligations as and when due or to perform any instrument evidencing of such Obligations in accordance with the obligations of terms thereof, then in each such event each other Co-Borrower will make such payment with respect to, or perform, such Obligations. Each Co-Borrower further agrees that the Borrower will be such Co-Borrower’s agent for administrative, mechanical, and notice provisions in this Agreement and any other BorrowerLoan Document (the Borrower in such capacity, or any part thereofthe “Borrower Representative”) as may be further set forth in the Co-Borrower Joinder, or any other agreement now or hereafter executed by any other Borrower and delivered to the Lenders and the Administrative Agent or any Lender, (D) hereby agree that each Co-Borrower will have the failure by same rights under the Administrative Agent or any Lender to take any steps to perfect Loan Documents as if it is the Borrower and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Borrower, (E) the Administrative Agent’s or any Lender’s election, in any proceeding instituted purposes under the Bankruptcy Code provisions of this Agreement, including the United Statesaffirmative and negative covenants, of the application of Section 1111(b)(2) of the Bankruptcy Code of the United States, (F) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code of the United States, (G) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the obligations of any other each such Co-Borrower under Section 502 of the Bankruptcy Code of the United States, or (H) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to each Borrower’s obligations arising will be treated as a result of the joint Restricted Subsidiary, a Loan Party and several liability of such Borrower a Subsidiary Guarantor for all purposes hereunder with respect to Loans made to the Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid (except as provided in full this Section 1.11) and this Agreement and under the other Loan Documents shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part Documents. As of the ObligationsClosing Date, and any benefit of, and any right to participate in, any security or collateral given to Schedule 1.11 sets forth the Administrative Agent or any Lender to secure payment list of the Obligations or any other liability of any Borrower to Loan Parties on the Administrative Agent or any Lender. (d) Upon Closing Date, including the occurrence and during the continuation of any Event of Default, the Administrative Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion list of the Obligations, without first proceeding against any other Co-Borrowers who have executed and delivered a Co-Borrower or any other Person, or against any security or collateral for Joinder on the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations. (e) Each Borrower hereby irrevocably appoints the Administrative Borrower as the borrowing agent and attorney-in-fact for the Borrowers, which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed in the place of the Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i) to provide to the Administrative Agent and receive from the Administrative Agent all notices with respect to Loans obtained for the -96Closing Date.

Co-Borrowers. Notwithstanding anything herein to the contrary, after the Closing Date, the Borrower, upon 15 Business Days prior written notice to the Administrative Agent (aor such shorter period as reasonably agreed by the Administrative Agent), may cause any additional Subsidiary Guarantor by written election to the Administrative Agent to become a co- borrower under each of the Facilities hereunder on a joint and several basis (each such Subsidiary Guarantor identified by the Borrower as such a co-borrower, a “Co-Borrower”, and, together with the Borrower, the “Co-Borrowers”, and the date of effectiveness of any such designation of any Subsidiary Guarantor as a Co- Borrower, the “Co-Borrower Effective Date”); provided that such Loan Party shall (i) execute a joinder to this Agreement in form and substance reasonably satisfactory to the Administrative Agent assuming all obligations of a Co-Borrower hereunder, which the Administrative Agent shall have acknowledged and accepted as provided therein (a “ Co-Borrower Joinder”), (ii) at least three Business Days prior to the applicable Co-Borrower Effective Date, provide to the Administrative Agent and the Lenders all documentation and other information required by United States regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws, including without limitation Title III of the USA Patriot Act, that shall be reasonably requested by the Administrative Agent in writing at least 10 Business Days prior to the consummation of such joinder, (iii) provide to the Administrative Agent and the Lenders, if such Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification and (iv) be a wholly owned U.S. Subsidiary of the Borrower. The Lenders and Issuing Banks hereby irrevocably authorize the Administrative Agent to enter into any amendment to this Agreement or to any other Loan Document as may be necessary or appropriate in order to establish any such additional Co- Borrower pursuant to this Section 1.10 and such technical amendments, and other customary amendments with respect to provisions of this Agreement relating to taxes for borrowers, in each case as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection therewith. Each Co-Borrower accepts agrees that it is jointly and severally liable for the obligations of the Borrower and each other Co-Borrower hereunder with respect to any Class of Loans on an individual tranche basis, including with respect to the payment of principal of and interest on all Loans on an individual tranche basis, the payment of amounts owing in respect of Letters of Credit and the payment of fees and indemnities and reimbursement of costs and expenses. Each Co-Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders and the Issuing Banks under this Agreement and the other Loan DocumentsAgreement, for the mutual benefit, directly and indirectly, of each Borrower of the Co-Borrowers and in consideration of the undertakings of each Borrower of the Co-Borrowers to accept joint and several liability for the obligations of each of them. Each Co-Borrower. (b) Each Borrower shall be , jointly and severally liable for severally, hereby irrevocably and unconditionally accepts, as a co-debtor, joint and several liability with each other Co-Borrower, with respect to the payment and performance of all of the Obligations, regardless of which Borrower actually receives it being the Loans hereunder or the amount intention of the parties hereto that all Obligations received or the manner in which the Administrative Agent or any Lender accounts for the Obligations on its books and records. Each Borrower’s obligations with respect to Loans made to it, and each Borrower’s obligations arising as a result of shall be the joint and several liability of such Borrower hereunder, with respect to Loans or LC Obligations made to and other Obligations owing by the Borrowers hereunder, shall be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrower. (c) Each Borrower’s obligations arising as a result all of the joint Co-Borrowers without preferences or distinction among them. If and several liability of such Borrower hereunder with respect to Loans made to, Letters of Credit issued on behalf of, and other Obligations owing by the Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (A) that the validity Borrower or enforceability, avoidance or subordination any of the obligations of Co-Borrowers shall fail to make any other Borrower or of any promissory note or other document evidencing all or any part of the obligations of any other Borrower, (B) the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or any other security therefor, or the absence of any other action to enforce the same, (C) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender payment with respect to any provision of the Obligations as and when due or to perform any instrument evidencing of such Obligations in accordance with the obligations of any terms thereof, then in each such event each other BorrowerCo-Borrower will make such payment with respect to, or any part thereofperform, or any other agreement now or hereafter executed by any other such Obligations. Each Co-Borrower and delivered to further agrees that the Administrative Agent or any Lender, (D) the failure by the Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Borrower, (E) the Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code of the United States, of the application of Section 1111(b)(2) of the Bankruptcy Code of the United States, (F) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code of the United States, (G) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the obligations of any other Borrower under Section 502 of the Bankruptcy Code of the United States, or (H) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to each will be such Co-Borrower’s obligations arising as a result of the joint agent for administrative, mechanical, and several liability of such Borrower hereunder with respect to Loans made to the Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid notice provisions in full and this Agreement and any other Loan Document (the Borrower in such capacity, the “Borrower Representative”) as may be further set forth in the Co-Borrower Joinder. All references to the “Borrower” in Article II, Article III, and to the extent applicable, Article X (but not any other provisions of this Agreement) shall be deemed to include the Borrower in its capacity as Borrower Representative on behalf of any Co-Borrowers, as applicable. For the avoidance of doubt, each Co-Borrower shall continue to be treated as a Loan Party for all purposes hereunder and each Co-Borrower (other than the Borrower) shall continue to be treated as a Restricted Subsidiary and as a Subsidiary Guarantor for all purposes hereunder (in each case, except as provided in this Section 1.10) and under the other Loan Documents shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations or any other liability of any Borrower to the Administrative Agent or any Lender. (d) Upon the occurrence and during the continuation of any Event of Default, the Administrative Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations. (e) Each Borrower hereby irrevocably appoints the Administrative Borrower as the borrowing agent and attorney-in-fact for the Borrowers, which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed in the place of the Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i) to provide to the Administrative Agent and receive from the Administrative Agent all notices with respect to Loans obtained for the -96Documents.

Co-Borrowers. (a) Each Borrower accepts hereby accepts, but only to the extent not prohibited by applicable insolvency laws, not merely as a surety but also as a co-debtor, joint and several liability hereunder in consideration with the other Borrowers with respect to the payment and performance of all of the financial accommodation Obligations, it being the intention of the parties hereto that all the Obligations shall be joint and several obligations of each Borrower without preferences or distinctions among them. If and to be provided the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower hereby agrees that it will not, without Required Lenders’ prior, written consent, enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by the Administrative Agent, the Lenders and the Issuing Banks it hereunder or under this Agreement and any of the other Loan Documents, any payments made by it to Lenders with respect to any of the Obligations, or any collateral security therefor, until such time as all of the Obligations have been paid in full in cash. Lenders may from time to time, without exonerating or releasing any Borrower in any way under this Agreement, (a) take such further or other security or securities for the mutual benefitObligations or any part thereof as it may deem proper, directly and indirectly, of each Borrower and in consideration of the undertakings of each Borrower to accept joint and several liability for the obligations of each Borrower. or (b) release, discharge, abandon, or otherwise deal with or fail to deal with any Borrower or guarantor of the Obligations or any collateral, security, or securities therefor or any part thereof now or hereafter held by the Lenders or (c) amend, modify, extend, accelerate, or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as it may consider expedient or appropriate at its sole discretion. Each Borrower agrees that until each and every one of the covenants and agreements of the Loan Documents is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Borrower’s undertakings hereunder shall not be released, in whole or in part, by any action or thing that might, but for this Agreement, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver or omission by Lenders or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by Lenders, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Borrower or by reason of any further dealings between any Borrower, on the one hand, and Lenders, on the other hand, or any other guarantor or surety, and each Borrower hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description that it may have or may exist based upon, and each Borrower shall be jointly and severally liable deemed to have consented to, any of the foregoing acts, omissions, things, agreements, or waivers. Upon the bankruptcy or winding up or other distribution of assets of any Borrower or of any surety or guarantor for the any Obligations, regardless the rights of which Lenders against any Borrower actually receives or any other guarantor of the Loans hereunder Obligations shall not be affected or impaired by the omission of Lenders to prove their claim, or to prove the full claim, as appropriate, and Lenders may prove such claims as they see fit and may refrain from proving any claim and at their discretion may value as they see fit or refrain from valuing any security held by them without in any way releasing, reducing, or otherwise affecting the liability to the Lenders of any Borrower. Each Borrower hereby unconditionally and irrevocably waives, unless expressly provided for herein or under the Loan Documents: (i) notice of acceptance hereof, (ii) notice of any loans or other financial accommodations made or extended under this Agreement, or the creation or existence of any of any additional Obligations, (iii) notice of the amount of the Obligations, subject, however, to such Borrower’s rights hereunder; (iv) notice of any adverse change in the financial condition of any Borrower or of any other fact that might increase such Borrower’s risk hereunder; (v) notice of presentment for payment, demand, protest, dishonor, and notice thereof; (vi) notice of any Default or Event of Default; (vii) all diligence in collection or protection of or realization upon the Obligations received or the manner in which the Administrative Agent or any Lender accounts part thereof, any obligation hereunder, or any security for the Obligations on its books and records. Each Borrower’s obligations with respect to Loans made to it, and each Borrower’s obligations arising as a result any of the joint foregoing, (viii) all rights to enforce any remedy that the Lenders may have against any Borrower or any other guarantor; and several liability of such (ix) all other notices and demands to which any Borrower hereunder, with respect to Loans or LC Obligations made to and other Obligations owing by the Borrowers hereunder, shall might otherwise be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrowerentitled. (c) Each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to, Letters of Credit issued on behalf of, and other Obligations owing by the Borrowers hereunder shall, to To the fullest extent permitted by applicable law, be unconditional irrespective of (A) each Borrower hereby waives the validity right by statute or enforceability, avoidance or subordination of the obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the obligations of any other Borrower, (B) the absence of any attempt otherwise to collect the Obligations from any other Borrower, any other guarantor, or any other security therefor, or the absence of any other action require Lenders to enforce the same, (C) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender with respect to any provision of any instrument evidencing the obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent or any Lender, (D) the failure by the Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Borrower, (E) the Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code of the United States, of the application of Section 1111(b)(2) of the Bankruptcy Code of the United States, (F) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code of the United States, (G) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the obligations of any other Borrower under Section 502 of the Bankruptcy Code of the United States, or (H) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to the Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement and the other Loan Documents shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations or any other liability of any Borrower to the Administrative Agent or any Lender. (d) Upon the occurrence and during the continuation of any Event of Default, the Administrative Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding institute suit against any other Borrower or any other Personguarantor or to exhaust any rights and remedies that Lenders have or may have against any other Borrower or any other guarantor. Each Borrower further waives any defense arising by reason of any disability or other defense (other than the defense that the Obligations shall have been indefeasibly and fully and finally paid and the commitments hereunder have been terminated) of such Borrower. No Borrower shall be released or discharged, either in whole or in part, by Lenders’ failure or delay to (A) perfect or continue the perfection of any lien or security interest in any collateral that secures the Obligations, or (B) protect the property covered by such lien or security interest. To the maximum extent permitted by law, each Borrower hereby waives: (I) any rights to assert against Lenders any defense (legal or equitable), setoff, counterclaim, or claim that such Borrower may now or at any time hereafter have against any security other Borrower or any other party liable to Lenders on account of or with respect to the Obligations (other than the defense that the Obligations have been fully and finally paid and the commitments hereunder have been terminated); (II) any defense, setoff, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future sufficiency, validity, or enforceability of the Obligations (other than the defense that the Obligations shall have been fully and finally paid and the commitments hereunder have been terminated); (III) any defense arising by reason of any claim or defense based upon an election of remedies by Lenders; (IV) any right to assert against Lenders any claim or defense in relation to any requirement upon Lenders to marshal any collateral for the benefit of such Borrower or any other person; (V) the benefit of any statute of limitations affecting such Borrower’s liability hereunder or the enforcement thereof. In addition, each Borrower hereby waives, until such time as the Obligations are fully and finally paid and the commitments hereunder are terminated, any right to proceed against any other Borrower or any other guarantor, now or hereafter, for contribution, indemnity, reimbursement, or any other suretyship rights and claims (irrespective of whether direct or indirect, liquidated or contingent), with respect to the Obligations. Each Borrower consents and also hereby waives any right to proceed or to seek recourse against or with respect to any property or asset of any other Borrower or any other guarantor. Each Borrower hereby agrees that, in light of the waivers contained in this Section, such Borrower shall not be deemed to be a “creditor” (as that term is defined in the Administrative Agent and Bankruptcy Code or otherwise) of any other Borrower or any other guarantor, whether for purposes of the application of Sections 547 or 550 of the United States Bankruptcy Code or otherwise. To the maximum extent permitted by law, each Borrower waives any duty on the part of the Lenders shall be under no obligation to marshal disclose to such Borrower any assets in favor facts the Lenders may now or hereafter know about any other Borrower, regardless of whether the Lenders have reason to believe that any such facts materially increase the risk beyond that which such Borrower intends to assume, or has reason to believe that such facts are unknown to such Borrower, or has a reasonable opportunity to communicate such facts to such Borrower, because such Borrower acknowledges that such Borrower is fully responsible for being and keeping informed of the financial condition of any other Borrower or against or in payment of any or and all of the Obligationscircumstances bearing on the risk on nonpayment of any Obligations hereunder. (e) Each The obligations of each Borrower hereby irrevocably appoints the Administrative Borrower as the borrowing agent and attorney-in-fact for the Borrowers, which appointment hereunder shall remain in full force and effect unless without regard to, and until shall not be affected or impaired by the Administrative Agent following, any of which may be taken without the consent of, or notice to, such Borrower, nor shall any of the following give any Borrower any recourse or right of action against the Lenders: (W) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation, or other like proceeding relating to any Borrower, or any guarantor (which term shall include any other party at any time directly or contingently liable for any of the Borrowers’ obligations under the Loan Documents) or any affiliate of any Borrower, or any action taken with respect to this Agreement or any of the other Loan Documents by any trustee or receiver, or by any court, in any such proceeding, whether or not such Borrower shall have received prior written had notice signed or knowledge of any of the foregoing; (X) any release or discharge of any Borrower from its liability under any of the Loan Documents or any release or discharge of any endorser or guarantor or of any other party at any time directly or contingently liable for the Obligations; (Y) any subordination, compromise, release (by operation of law or otherwise), discharge, compound, collection, or liquidation of any or all of the Collateral or other property described in any of the Loan Documents or otherwise in any manner, or any substitution with respect thereto; and (Z) any acceptance of partial performance of the Obligations. AMERICAN RESTAURANT GROUP, INC., a Delaware corporation By: Name: Xxxxx X. Xxxxxxx Title: President and Chief Executive Officer ARG ENTERPRISES, INC., a California corporation By: Name: Xxxxx X. Xxxxxxx Title: President and Chief Executive Officer ARG PROPERTY MANAGEMENT CORPORATION, a California corporation By: Name: Xxxxx X. Xxxxxxx Title: President and Chief Executive Officer ARG TERRA, INC., a Delaware corporation By: Name: Xxxxx X. Xxxxxxx Title: President and Chief Executive Officer TCW SHARED OPPORTUNITY FUND III, L.P. By: TCW Asset Management Company, its Investment Advisor By: Name: Title: By: Name: Title: Address: c/o Trust Company of the West 00000 Xxxxx Xxxxxx Xxxx. Suite 2000 Los Angeles, California 90025 Attn: Xxxxxxxx X. Tell, Jr. Acct. Number: EXHIBIT A [Form of Term Note] TERM NOTE $[ ] [ ] [ ], California FOR VALUE RECEIVED, each of American Restaurant Group, Inc., a Delaware corporation, ARG Enterprises, Inc., a California corporation, and ARG Property Management Corporation, a California corporation (collectively, the “Borrowers”), hereby promises to pay to [ ] (the “Lender”), at the office of [ ], located at [ ], the principal sum of [ ] Dollars (or such lesser amount as equals the aggregate unpaid principal amount of the Loans made by the Lender to the Borrowers that such appointment has been revoked under the Loan Agreement), in lawful money of the United States of America and that another Borrower has been appointed in immediately available funds, on the dates and in the place principal amounts provided in the Loan Agreement, and to pay interest on the unpaid principal amount of each such Loan, at that office, in like money and funds, for the Administrative Borrowerperiod commencing on the date of that Loan until that Loan is paid in full, at the rates per annum and on the dates provided in the Loan Agreement. Each Borrower hereby irrevocably appoints is jointly and authorizes severally liable for all payments of principal and interest as well as for all other obligations associated with the Administrative Borrower Loan evidenced by this Term Note. The date, amount, interest rate, and duration of interest period (iif applicable) of the Loan evidenced by this Term Note, and each payment made on account of the principal of that Loan, shall be recorded by the Lender on its books and, prior to provide any transfer of this Term Note, endorsed by the Lender on the schedule attached to this Term Note or any continuation of that schedule, provided that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrowers to make a payment when due of any amount owing under the Loan Agreement or under this Term Note in respect of the Loans made by the Lender. This Term Note is one of the Term Notes referred to in the Loan Agreement dated as of October 31, 2003, as modified and supplemented and in effect from time to time, the “Loan Agreement”) between the Borrowers, and ARG Terra, Inc. (a “Credit Party” and collectively with the Borrowers, the “Credit Parties”) and the Lenders (including this Lender) and evidences a Loan made to the Administrative Agent and receive from Lender under the Administrative Agent all notices with respect Loan Agreement. Capitalized terms used but not defined in this Term Note have the respective meanings assigned to Loans obtained them in the Loan Agreement. The Loan Agreement provides for the -96acceleration of the maturity of this Term Note upon the occurrence of certain events and for prepayments of Loans upon the terms and conditions specified in the Loan Agreement. Time is of the essence of this Term Note. Demand, presentation, protest, and notice of nonpayment and protest are hereby unconditionally waived by the Borrowers. Except as permitted by Section 13.1 of the Loan Agreement, this Term Note may not be assigned by the Lender to any other Person. This Term Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the Loan Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security and the guarantees, the terms and conditions upon which the security interests were granted and the guarantees made, and the rights of the Lender in respect of such security interests and guarantees. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF CALIFORNIA. AMERICAN RESTAURANT GROUP, INC., as Borrower By: Name: Title: ARG ENTERPRISES, INC., as Borrower By: Name: Title: ARG PROPERTY MANAGEMENT CORPORATION, as Borrower By: Name: Title: Schedule C-1 Commitments Name of Lender Amount Percentage TCW Shared Opportunity Fund III, L.P. $ 5,000,000 100 % Schedule P-1 Permitted Liens Schedule 3.1(i) Certain Documents Schedule 5.1(b) Capitalization of Borrower Schedule 5.1(c) Capitalization of Borrowers’ Subsidiaries Schedule 5.7 Environmental Matters Schedule 5.9 Intellectual Property Schedule 5.14 Indebtedness