Common use of Contribution by Guarantor Subsidiaries Clause in Contracts

Contribution by Guarantor Subsidiaries. All Guarantor Subsidiaries desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any date by a Guarantor Subsidiary (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section 7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor in respect of this Guaranty (including, without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder. Each Guarantor Subsidiary is a third-party beneficiary to the contribution agreement set forth in this Section 7.2.

Contribution by Guarantor Subsidiaries. All Guarantor Subsidiaries desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any date by a Guarantor Subsidiary (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section 7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor in respect of this Guaranty (including, without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder. Each Guarantor Subsidiary is a third-third party beneficiary to the contribution agreement set forth in this Section 7.2.

Contribution by Guarantor Subsidiaries. All The Guarantor Subsidiaries desire to allocate among themselves (collectively, the “Contributing Guarantors”)themselves, in a fair and equitable manner, their obligations arising under this GuarantySection 7. Accordingly, in the event any payment or distribution is made on any date by a Guarantor Subsidiary (a “Funding Guarantor”) under this Guaranty its Obligations Guarantee such that its Aggregate Payments exceeds exceed its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Guarantor Subsidiary (a “Contributing Guarantors Guarantor”) in an amount sufficient to cause each Contributing GuarantorGuarantor Subsidiary’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing any Guarantor Subsidiary as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor Subsidiary to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors Guarantor Subsidiaries multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding Guarantors under this Guaranty in respect of the obligations Guaranteedtheir Obligations Guarantee. “Fair Share Contribution Amount” means, with respect to a Contributing any Guarantor Subsidiary as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor Subsidiary under this Guaranty its Obligations Guarantee that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state law; provided, provided that solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Contributing Guarantor Subsidiary for purposes of this Section 7.2, any assets or liabilities of such Contributing Guarantor Subsidiary arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder under this Section 7 shall not be considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor in respect of this Guaranty (including, without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder. Each Guarantor Subsidiary is a third-party beneficiary to the contribution agreement set forth in this Section 7.2.liabilities

Contribution by Guarantor Subsidiaries. All Guarantor Subsidiaries desire to allocate among themselves (collectively, the “Contributing Guarantors”)themselves, in a fair and equitable manner, their obligations arising under this Guaranty. Accordingly, at any time a payment in respect of the Guaranteed Obligations is made under this Guaranty, the right of contribution of each Guarantor Subsidiary against each other Guarantor Subsidiary shall be determined as provided in the event any immediately following sentence, with the right of contribution of each Guarantor Subsidiary to be revised and restated as of each date on which a payment or distribution (a “Relevant Payment”) is made on the Guaranteed Obligations under this Guaranty. At any date time that a Relevant Payment is made by a Guarantor Subsidiary that results in the aggregate payments made by such Guarantor Subsidiary in respect of the Guaranteed Obligations to and including the date of the Relevant Payment exceeding such Guarantor Subsidiary’s Contribution Percentage (as defined below) of the aggregate payments made by all Guarantor Subsidiaries in respect of the Guaranteed Obligations to and including the date of the Relevant Payment (such excess, the “Aggregate Excess Amount”), each such Guarantor Subsidiary shall have a right of contribution against each other Guarantor Subsidiary who has made payments in respect of the Guaranteed Obligations to and including the date of the Relevant Payment in an aggregate amount less than such other Guarantor Subsidiary’s Contribution Percentage of the aggregate payments made to and including the date of the Relevant Payment by all Guarantor Subsidiaries in respect of the Guaranteed Obligations (the aggregate amount of such deficit, the “Funding GuarantorAggregate Deficit Amount”) under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (ax) a fraction the ratio numerator of (i) which is the Fair Share Contribution Aggregate Excess Amount with respect to of such Contributing Guarantor to (ii) Subsidiary and the aggregate denominator of which is the Fair Share Contribution Amounts with respect to Aggregate Excess Amount of all Contributing Guarantors Guarantor Subsidiaries multiplied by (by) the aggregate amount Aggregate Deficit Amount of such other Guarantor Subsidiary. A Guarantor Subsidiary’s right of contribution pursuant to the preceding sentences shall arise at the time of each computation, subject to adjustment to the time of each computation; provided that no Guarantor Subsidiary may take any action to enforce such right until the Guaranteed Obligations (other than any inchoate indemnification or reimbursement obligations for which no claim has been asserted) have been irrevocably paid or distributed on or before such date in full in cash and the Total Commitment and all Letters of Credit have been terminated, it being expressly recognized and agreed by all Funding Guarantors under parties hereto that any Guarantor Subsidiary’s right of contribution arising pursuant to this Guaranty Section 7.2 against any other Guarantor Subsidiary shall be expressly junior and subordinate to such other Guarantor Subsidiary’s obligations and liabilities in respect of the Guaranteed Obligations and any other obligations Guaranteed. “Fair Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor owing under this Guaranty that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section 7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Contributing GuarantorGuaranty. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor in respect of this Guaranty (including, without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder. Each Guarantor Subsidiary is a third-party beneficiary to the contribution agreement set forth As used in this Section 7.2.: (i) each Guarantor Subsidiary’s “Contribution Percentage” shall mean the percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor Subsidiary by (y) the aggregate Adjusted Net Worth of all Guarantor Subsidiaries; (ii) the

Contribution by Guarantor Subsidiaries. All Guarantor Subsidiaries desire to allocate among themselves (collectively, the “Contributing Guarantors”)themselves, in a fair and equitable manner, their obligations arising under this Guaranty. Accordingly, at any time a payment in respect of the Guaranteed Obligations is made under this Guaranty, the right of contribution of each Guarantor Subsidiary against each other Guarantor Subsidiary shall be determined as provided in the event any immediately following sentence, with the right of contribution of each Guarantor Subsidiary to be revised and restated as of each date on which a payment or distribution (a “Relevant Payment”) is made on the Guaranteed Obligations under this Guaranty. At any date time that a Relevant Payment is made by a Guarantor Subsidiary that results in the aggregate payments made by such Guarantor Subsidiary in respect of the Guaranteed Obligations to and including the date of the Relevant Payment exceeding such Guarantor Subsidiary’s Contribution Percentage (as defined below) of the aggregate payments made by all Guarantor Subsidiaries in respect of the Guaranteed Obligations to and including the date of the Relevant Payment (such excess, the “Aggregate Excess Amount”), each such Guarantor Subsidiary shall have a right of contribution against each other Guarantor Subsidiary who has made payments in respect of the Guaranteed Obligations to and including the date of the Relevant Payment in an aggregate amount less than such other Guarantor Subsidiary’s Contribution Percentage of the aggregate payments made to and including the date of the Relevant Payment by all Guarantor Subsidiaries in respect of the Guaranteed Obligations (the aggregate amount of such deficit, the “Funding GuarantorAggregate Deficit Amount”) under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (ax) a fraction the numerator of which is the Aggregate Excess Amount of such Guarantor Subsidiary and the denominator of which is the Aggregate Excess Amount of all Guarantor Subsidiaries multiplied by (y) the ratio Aggregate Deficit Amount of such other Guarantor Subsidiary. A Guarantor Subsidiary’s right of contribution pursuant to the preceding sentences shall arise at the time of each computation, subject to adjustment to the time of each computation; provided that no Guarantor Subsidiary may take any action to enforce such right until the Guaranteed Obligations (other than any inchoate indemnification or reimbursement obligations for which no claim has been asserted) have been irrevocably paid in full in cash and the Total Commitment has been terminated, it being expressly recognized and agreed by all parties hereto that any Guarantor Subsidiary’s right of contribution arising pursuant to this Section 7.2 against any other Guarantor Subsidiary shall be expressly junior and subordinate to such other Guarantor Subsidiary’s obligations and liabilities in respect of the Guaranteed Obligations and any other obligations owing under this Guaranty. As used in this Section 7.2: (i) each Guarantor Subsidiary’s “Contribution Percentage” shall mean the Fair Share Contribution Amount with respect to percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of such Contributing Guarantor to Subsidiary by (y) the aggregate Adjusted Net Worth of all Guarantor Subsidiaries; (ii) the aggregate “Adjusted Net Worth” of each Guarantor Subsidiary shall mean the Fair Share Contribution Amounts with respect to all Contributing Guarantors multiplied by greater of (bx) the aggregate Net Worth (as defined below) of such Guarantor Subsidiary and (y) zero; and (iii) the “Net Worth” of each Guarantor Subsidiary shall mean the amount paid or distributed by which the fair saleable value of such Guarantor Subsidiary’s assets on or before such the date by all Funding Guarantors of any Relevant Payment exceeds its existing debts and other liabilities (including contingent liabilities, but without giving effect to any Guaranteed Obligations arising under this Guaranty or any guaranteed obligations arising under any guaranty of the ABL Loans, any Additional Secured Term Loans, any Unsecured Debt or any Qualified Seller Subordinated Debt) on such date. Notwithstanding anything to the contrary contained above, any Guarantor Subsidiary that is released from this Guaranty pursuant to Section 7.12 shall thereafter have no contribution obligations, or rights, pursuant to this Section 7.2, and at the time of any such release, if the released Guarantor Subsidiary had an Aggregate Excess Amount or an Aggregate Deficit Amount, same shall be deemed reduced to $0, and the contribution rights and obligations of the remaining Guarantor Subsidiaries shall be recalculated on the respective date of release (as otherwise provided above) based on the payments made hereunder by the remaining Guarantor Subsidiaries. All parties hereto recognize and agree that, except for any right of contribution arising pursuant to this Section 7.2, each Guarantor Subsidiary who makes any payment in respect of the obligations Guaranteed. “Fair Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section 7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations Guaranteed Obligations shall have no right of contribution hereunder shall not be considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect to a Contributing subrogation against any other Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor Subsidiary in respect of such payment until all of the Guaranteed Obligations (other than any inchoate indemnification or reimbursement obligations for which no claim has been asserted) have been irrevocably paid in full in cash. Each of the Guarantor Subsidiaries recognizes and acknowledges that the rights to contribution arising hereunder shall constitute an asset in favor of the party entitled to such contribution. In this Guaranty (includingconnection, without limitationeach Guarantor Subsidiary has the right to waive its contribution right against any Guarantor Subsidiary to the extent that after giving effect to such waiver such Guarantor Subsidiary would remain solvent, in respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall be determined as reasonable determination of the date on which the related payment or distribution is made by the applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any Contributing Guarantor hereunderRequisite Lenders. Each Guarantor Subsidiary is a third-third party beneficiary to the contribution agreement set forth in this Section 7.2.