Common use of Joint and Several Liability of Canadian Borrowers Clause in Contracts

Joint and Several Liability of Canadian Borrowers. Each Canadian Borrower agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to Agent and Canadian Secured Parties the prompt payment and performance of, all Canadian Obligations, except its Excluded Swap Obligations. Each Canadian Borrower agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment and not of collection, that such obligations shall not be discharged until Full Payment of the Canadian Obligations, and that such obligations are absolute and unconditional, irrespective of (a) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Canadian Obligations or Loan Document, or any other document, instrument or agreement to which any Canadian Obligor is or may become a party or be bound; (b) the absence of any action to enforce this Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any Canadian Secured Party with respect thereto; (c) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for any Canadian Obligations or any action, or the absence of any action, by Agent or any Canadian Secured Party in respect thereof (including the release of any security or guaranty); (d) the insolvency of any Canadian Obligor; (e) any election by Agent or any Canadian Lender in an Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code or similar provision of any other Applicable Law; (f) any borrowing or grant of a Lien by any other Canadian Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, the BIA, the Companies’ Creditors Arrangement Act (Canada) or otherwise; (g) the disallowance of any claims of Agent or any Canadian Secured Party against any Canadian Obligor for the repayment of any Canadian Obligations under Section 502 of the Bankruptcy Code, the BIA, the Companies’ Creditors Arrangement Act (Canada) or otherwise; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except Full Payment of the Canadian Obligations.

Joint and Several Liability of Canadian Borrowers. (a) Each Canadian Borrower agrees that it is accepting joint and several liability hereunder and under the other Loan Documents for the Canadian Obligations with the other Canadian Borrowers in consideration of the financial accommodations to be provided by the Lender Group under this Agreement, for the mutual benefit, directly and indirectly, of each Canadian Borrower and in consideration of the undertakings of the other Canadian Borrowers to accept joint and several liability for the Canadian Obligations. (b) Each Canadian Borrower, jointly and severally liable forseverally, and absolutely hereby irrevocably and unconditionally guarantees accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Canadian Borrowers, with respect to Agent and Canadian Secured Parties the prompt payment and performance of all of the Canadian Obligations (including, without limitation, any Canadian Obligations arising under this Section 2.16), it being the intention of the parties hereto that all the Canadian Obligations shall be the joint and several obligations of each Canadian Borrower without preferences or distinction among them. (c) If and to the extent that any Canadian Borrower shall fail to make any payment with respect to any of the Canadian Obligations as and when due or to perform any of the Canadian Obligations in accordance with the terms thereof (including any applicable grace period or notice requirement), then in each such event the other Canadian Borrowers will make such payment with respect to, or perform, such Canadian Obligation. (d) The Canadian Obligations of each Canadian Borrower under the provisions of this Section 2.16 constitute the absolute and unconditional, full recourse Canadian Obligations of each Canadian Borrower enforceable against each Canadian Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. (e) Except as otherwise expressly provided in this Agreement, each Canadian Borrower hereby waives, to the fullest extent permitted by applicable law, notice of acceptance of its joint and several liability, notice of any Advances or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Agents or Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the fullest extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Canadian Borrower hereby assents to, and waives, to the extent permitted by law, notice of, all Canadian any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Agents or Lenders at any time or times in respect of any default by any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Agents or Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Canadian Borrower assents to any other action or delay in acting or failure to act on the part of any Agent or any Lender with respect to the failure by any Borrower to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.16 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 2.16, it being the intention of each Canadian Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Canadian Obligations of each Canadian Borrower under this Section 2.16 shall not be discharged except its Excluded Swap by performance or payment and then only to the extent of such performance or payment. The Canadian Obligations of each Canadian Borrower under this Section 2.16 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or any Agent or any Lender. (f) Each Canadian Borrower represents and warrants to Agents and Lenders that such Canadian Borrower is currently informed of the financial condition of Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Canadian Obligations. Each Canadian Borrower agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment further represents and not of collection, warrants to Agents and Lenders that such obligations Canadian Borrower has read and understands the terms and conditions of the Loan Documents. Each Canadian Borrower hereby covenants that such Canadian Borrower will continue to keep informed of Borrowers’ financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Canadian Obligations. (g) The provisions of this Section 2.16 are made for the benefit of Agents, Lenders and their respective successors and assigns, and may be enforced by them from time to time against any or all Canadian Borrowers as often as occasion therefor may arise and without requirement on the part of such Agent, such Lender, successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any Borrower or to exhaust any remedies available to it or them against any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.16 shall not be discharged remain in effect until Full Payment all of the Canadian Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Canadian Obligations, and that such obligations are absolute and unconditional, irrespective of (a) the genuineness, validity, regularity, enforceability, subordination is rescinded or must otherwise be restored or returned by any Agent or any future modification ofLender upon the insolvency, bankruptcy or reorganization of any Borrower, or change inotherwise, the provisions of this Section 2.16 will forthwith be reinstated in effect, as though such payment had not been made. (h) Each Canadian Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to Agents or Lenders with respect to any of the Canadian Obligations or Loan Document, or any other document, instrument or agreement to collateral security therefor until such time as all of the Canadian Obligations have been paid in full. Any claim which any Canadian Obligor is Borrower may have against any other Borrower with respect to any payments to any Agent or may become a party any Lender hereunder or be bound; (b) under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the absence Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any action insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to enforce any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. (i) Notwithstanding any other provision contained in this Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any Canadian Secured Party with respect thereto; if a “secured creditor” (c) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for any Canadian Obligations or any action, or the absence of any action, by Agent or any Canadian Secured Party in respect thereof (including the release of any security or guaranty); (d) the insolvency of any Canadian Obligor; (e) any election by Agent or any Canadian Lender in an Insolvency Proceeding for the application of Section 1111(b)(2) of as that term is defined under the Bankruptcy Code or similar provision of any other Applicable Law; (f) any borrowing or grant of a Lien by any other Canadian Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, the BIA, the Companies’ Creditors Arrangement and Insolvency Act (Canada)) is determined by a court of competent jurisdiction not to include a Person to whom obligations are owed on a joint or otherwise; joint and several basis, then each Canadian Borrower’s Obligations, to the extent such Canadian Obligations are secured, only shall be several and not joint or joint and several obligations. (gj) the disallowance of For greater certainty, and notwithstanding any claims of Agent other provision in this Agreement or any other Loan Document to the contrary, no Canadian Secured Loan Party against will be liable in any Canadian Obligor for way under this Agreement or the repayment of any Canadian Obligations under Section 502 of the Bankruptcy Codeother Loan Documents, the BIAdirectly or indirectly, the Companies’ Creditors Arrangement Act (Canada) or otherwise; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of whether as a surety or guarantorco-debtor, except Full Payment jointly or severally, for the payment or performance of any Obligations of the Canadian ObligationsUS Borrower or its Domestic Subsidiaries or is or will be obligated to grant security over its assets to secure the payment or performance of any Obligations of the US Borrower or its Domestic Subsidiaries.

Joint and Several Liability of Canadian Borrowers. Each Canadian Borrower agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to Agent and Canadian Secured Parties Lenders the prompt payment and performance of, all Canadian Obligations, except its Excluded Swap Obligations. Each Canadian Borrower agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment and not of collection, that such obligations shall not be discharged until Full Payment of the Canadian Obligations, and that such obligations are absolute and unconditional, irrespective of (ai) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Canadian Obligations or Loan Document, or any other document, instrument or agreement to which any Canadian Obligor Borrower is or may become a party or be bound; (bii) the absence of any action to enforce this Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any Canadian Secured Party Lender with respect thereto; (ciii) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for any Canadian Obligations or any action, or the absence of any action, by Agent or any Canadian Secured Party Lender in respect thereof (including the release of any security or guaranty); (div) the insolvency of any Canadian Obligor; (ev) any election by Agent or any Canadian Lender in an Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code or similar provision of any other Applicable Law; (fvi) any borrowing or grant of a Lien by any other Canadian Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, the BIA, the Companies’ Creditors Arrangement Act (Canada) ), Section 364 of the Bankruptcy Code or otherwise; (gvii) the disallowance of any claims of Agent or any Canadian Secured Party Lender against any Canadian Obligor for the repayment of any Canadian Obligations under Section 502 of the Bankruptcy Code, the BIA, the Companies’ Creditors Arrangement Act (Canada) ), Section 502 of the Bankruptcy Code or otherwise; or (hviii) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except Full Payment of the Canadian Obligations.

Joint and Several Liability of Canadian Borrowers. (i) Each Canadian Borrower agrees that it is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lender Group under this Agreement, for the mutual benefit, directly and indirectly, of each Canadian Borrower and in consideration of the undertakings of the other Canadian Borrowers to accept joint and several liability for the Canadian Obligations. (ii) Each Canadian Borrower, jointly and severally liable forseverally, and absolutely hereby irrevocably and unconditionally guarantees accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Canadian Borrowers, with respect to Agent and Canadian Secured Parties the prompt payment and performance of all of the Canadian Obligations (including, without limitation, any Canadian Obligations arising under this Section 2.16(b)), it being the intention of the parties hereto that all the Canadian Obligations shall be the joint and several obligations of each Canadian Borrower without preferences or distinction among them. (iii) If and to the extent that any Canadian Borrower shall fail to make any payment with respect to any of the Canadian Obligations as and when due or to perform any of the Canadian Obligations in accordance with the terms thereof, then in each such event the other Canadian Borrowers will make such payment with respect to, or perform, such Canadian Obligation. (iv) The Canadian Obligations of each Canadian Borrower under the provisions of this Section 2.16(b) constitute the absolute and unconditional, full recourse Canadian Obligations of each Canadian Borrower enforceable against each Canadian Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. (v) Except as otherwise expressly provided in this Agreement, each Canadian Borrower hereby waives, to the fullest extent permitted by applicable law, notice of acceptance of its joint and several liability, notice of any Advances or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Agents or Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the fullest extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Canadian Borrower hereby assents to, and waives, to the extent permitted by law, notice of, all Canadian any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Agents or Lenders at any time or times in respect of any default by any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Agents or Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Canadian Borrower assents to any other action or delay in acting or failure to act on the part of any Agent or any Lender with respect to the failure by any Borrower to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.16(b) afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 2.16(b), it being the intention of each Canadian Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Canadian Obligations of each Canadian Borrower under this Section 2.16(b) shall not be discharged except its Excluded Swap by performance or payment and then only to the extent of such performance or payment. The Canadian Obligations of each Canadian Borrower under this Section 2.16(b) shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or any Agent or any Lender. (vi) Each Canadian Borrower represents and warrants to Agents and Lenders that such Borrower is currently informed of the financial condition of Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Canadian Borrower agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment further represents and not of collection, warrants to Agents and Lenders that such obligations shall not be discharged until Full Payment Borrower has read and understands the terms and conditions of the Loan Documents. Each Canadian ObligationsBorrower hereby covenants that such Borrower will continue to keep informed of Borrowers’ financial condition, the financial condition of other guarantors, if any, and that of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations. (vii) The provisions of this Section 2.16(b) are made for the benefit of Agents, Lenders and their respective successors and assigns, and may be enforced by them from time to time against any or all Canadian Borrowers as often as occasion therefor may arise and without requirement on the part of such obligations are absolute and unconditionalAgent, irrespective such Lender, successor or assign first to marshal any of (aits or their claims or to exercise any of its or their rights against any Borrower or to exhaust any remedies available to it or them against any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.16(b) shall remain in effect until all of the genuineness, validity, regularity, enforceability, subordination Obligations shall have been paid in full or otherwise fully satisfied. If at any future modification of, or change intime, any Canadian Obligations or Loan Documentpayment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 2.16(b) will forthwith be reinstated in effect, as though such payment had not been made. (viii) Each Canadian Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other documentBorrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, instrument any payments made by it to Agents or agreement 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. Any claim which any Canadian Obligor is Borrower may have against any other Borrower with respect to any payments to any Agent or may become a party any Lender hereunder or be bound; (b) the absence of any action to enforce this Agreement (including this Section) or under any other Loan DocumentDocuments are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or any waiverthereunder, consent or indulgence to the prior payment in full in cash of the Obligations and, in the event of any kind by Agent insolvency, bankruptcy, receivership, liquidation, reorganization or any Canadian Secured Party with respect thereto; (c) other similar proceeding under the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for any Canadian Obligations or any action, or the absence laws of any actionjurisdiction relating to any Borrower, by Agent its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any Canadian Secured Party in respect thereof (including the release payment or distribution of any security character, whether in cash, securities or guaranty); (d) the insolvency of any Canadian Obligor; (e) any election by Agent or any Canadian Lender in an Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code or similar provision of other property, shall be made to any other Applicable Law; (f) any borrowing or grant of a Lien by any other Canadian Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, the BIA, the Companies’ Creditors Arrangement Act (Canada) or otherwise; (g) the disallowance of any claims of Agent or any Canadian Secured Party against any Canadian Obligor for the repayment of any Canadian Obligations under Section 502 of the Bankruptcy Code, the BIA, the Companies’ Creditors Arrangement Act (Canada) or otherwise; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except Full Payment of the Canadian ObligationsBorrower therefor.