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

Joint and Several Liability of Term Borrowers. (a) Subject to paragraphs (g) and (h) below, notwithstanding anything else in this Agreement or any other Loan Documents to the contrary, each Term Borrower, jointly and severally, in consideration of the financial accommodations to be provided by the Administrative Agent and Term Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each Term Borrower and in consideration of the undertakings of the other Term Borrower to accept joint and several liability for the Applicable Obligations, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Term Borrower, with respect to the payment and performance of all of the Applicable Obligations, it being the intention of the parties hereto that all of the Applicable Obligations shall be the joint and several obligations of each Term Borrower without preferences or distinction among them. The Term Borrowers shall be liable for all amounts due to Administrative Agent and the Term Lenders under this Agreement, regardless of which Term Borrower actually receives the relevant Term Loans hereunder or the amount of such Term Loans received or the manner in which the Administrative Agent or any relevant Term Lender accounts for such Term Loans or other extensions of credit on its books and records. The Applicable Obligations of the Term Borrowers with respect to Term Loans made to one of them, and the Applicable Obligations arising as a result of the joint and several liability of one of the Term Borrowers hereunder with respect to Term Loans made to the other Term Borrower hereunder, shall be separate and distinct obligations, but all such other Applicable Obligations shall be primary obligations of both Term Borrowers. (b) If and to the extent that any Term Borrower shall fail to make any payment with respect to any of the Applicable Obligations as and when due or to perform any of the Applicable Obligations in accordance with the terms thereof, then in each such event, the other Term Borrower will make such payment with respect to, or perform, such Applicable Obligation. (c) The obligations of each Term Borrower under this Section 2.24 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Term Borrower. The joint and several liability of the Term Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Term Borrower or any of the Term Lenders. (d) The provisions of this Section 2.24 hereof are made for the benefit of the Term Lenders and their successors and assigns, and subject to Article 7 hereof, may be enforced by them from time to time against any Term Borrower as often as occasion therefor may arise and without requirement on the part of Administrative Agent or any Term Lender first to marshal any of its claims or to exercise any of its rights against the other Term Borrower or to exhaust any remedies available to it against the other Term Borrower or to resort to any other source or means of obtaining payment of any of the Applicable Obligations hereunder or to elect any other remedy. The provisions of this Section 2.24 shall remain in effect until the Termination Date. If at any time, any payment, or any part thereof, made in respect of any of the Applicable Obligations is rescinded or must otherwise be restored or returned by Administrative Agent or any Term Lender upon the insolvency, bankruptcy or reorganization of any Term Borrower, or otherwise, the provisions of this Section 2.24 hereof will forthwith be reinstated and in effect as though such payment had not been made. (e) Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the obligations of a Term Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state, federal or foreign law relating to fraudulent conveyances or transfers) then the obligations of such Term Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state, provincial or foreign and including, without limitation, the Bankruptcy Code). (f) With respect to the Applicable Obligations arising as a result of the joint and several liability of the Term Borrowers hereunder with respect to Term Loans or other extensions of credit made to the other Term Borrower hereunder, to the maximum extent permitted by applicable law, each Term Borrower waives, until the occurrence of the Termination Date, any right to enforce any right of subrogation or any remedy which Administrative Agent or any Term Lender now has or may hereafter have against the other Term Borrower, any endorser or any guarantor of all or any part of the Applicable Obligations, and any benefit of, and any right to participate in, any security or collateral given to Administrative Agent or any Term Lender. Any claim which any Term Borrower may have against the other Term Borrower with respect to any payments to the Administrative Agent or the Term Lenders hereunder or under any of the other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Applicable Obligations arising hereunder or thereunder, to the occurrence of the Termination Date. Upon the occurrence of any Event of Default and for so long as the same is continuing, to the maximum extent permitted under applicable law, the Administrative Agent and the Term Lenders may proceed directly and at once, without notice (to the extent notice is waivable under applicable law), against (i) with respect to the Applicable Obligations of the Term Borrowers, any or all of them or (ii) with respect to Applicable Obligations of any Term Borrower, to collect and recover the full amount, or any portion of the Applicable Obligations, without first proceeding against the other Term Borrower or any other Person, or against any security or collateral for the Applicable Obligations. Each Term Borrower consents and agrees that Administrative Agent and Term Lenders shall be under no obligation to marshal any assets in favor of the Term Borrower(s) or against or in payment of any or all of the Applicable Obligations. Subject to the foregoing, in the event that a Term Loan or other extension of credit is made to, or with respect to business of, one Term Borrower and any other Term Borrower makes any payments with respect to such Term Loan or extension of credit, the first Term Borrower shall promptly reimburse such other Term Borrower for all payments so made by such other Term Borrower. (g) Section 2.24(a) above does not apply to any liability to the extent that it would result in the obligations assumed by an English Loan Party constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Xxx 0000. (i) Notwithstanding any provisions to the contrary in any Loan Document, the aggregate obligations and liabilities of the Lux Borrower under this Section 2.24 for the obligations of the US Co-Borrower shall be limited at any time to a maximum amount payable by the Lux Borrower not exceeding ninety-five per cent. (95%) of the sum of the Lux Borrower’s “capitaux propres” (as referred to in article 34 of the Luxembourg law dated 19 December 2002 (the “ Law of 2002”) concerning the register of commerce and companies and the accounting and annual accounts of undertakings, as amended) (the “Own Funds”) and the Lux Borrower’s subordinated debts (dettes subordonnées) (as referred to in article 34 of the Law of 2002 (the “Lux Subordinated Debt”), as determined on the basis of the then latest available annual accounts of the Lux Borrower duly established in accordance with applicable accounting rules, as at the date on which any obligation of the Lux Borrower under this Section 2.24 is called. (ii) Where, for the purpose of any determination under clause (h)(i) above, no duly established annual accounts of the Lux Borrower are available for the relevant reference period (which, for the avoidance of doubt, includes a situation where, in respect of any determination to be made under clause (h)(i) above, no final annual accounts have been established in due time in respect of the then most recently ended financial year) the Lux Borrower shall, promptly, establish unaudited interim accounts (as of the date of the end of the then most recent financial quarter) or annual accounts (as applicable) duly established in accordance with applicable accounting rules, pursuant to which the Lux Borrower’s Own Funds and Lux Subordinated Debt will be determined. If the Lux Borrower fails to provide such unaudited interim accounts or annual accounts (as applicable) within 20 Business Days as from the request of the Administrative Agent, the Administrative Agent may appoint, at the cost of the Borrowers, an independent auditor (réviseur d’entreprises agréé) or an independent reputable investment bank which, acting reasonably, shall undertake the determination of the Lux Borrower’s Own Funds and Lux Subordinated Debt in accordance with Luxembourg accounting principles. In order to prepare such determination, the independent auditor (réviseur d’entreprises agréé) or the independent reputable investment bank, as applicable, shall take into consideration such available elements and facts at such time including, without limitation, the latest annual accounts of the Lux Borrower and its subsidiaries, any recent valuation of the assets of the Lux Borrower and its subsidiaries (if available), the market value of the assets of the Lux Borrower and its subsidiaries as if sold between a willing buyer and a willing seller as a going concern using a standard market multi criteria approach combining market multiples, book value, discounted cash flow or comparable public transaction of which price is known (taking into account circumstances at the time of the valuation and making all necessary adjustments to the assumption being used) and acting in a reasonable manner. (iii) The limitation set forth in this clause (h) shall not apply to any Obligations of any of the Lux Borrower’s direct or indirect subsidiaries.

Joint and Several Liability of Term Borrowers. (a) Subject to paragraphs (g) and (h) below, notwithstanding anything else in this Agreement or any other Loan Documents to the contrary, each Term Borrower, jointly and severally, in consideration of the financial accommodations to be provided by the Administrative Agent and Term Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each Term Borrower and in consideration of the undertakings of the other Term Borrower to accept joint and several liability for the Applicable Obligations, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Term Borrower, with respect to the payment and performance of all of the Applicable Obligations, it being the intention of the parties hereto that all of the Applicable Obligations shall be the joint and several obligations of each Term Borrower without preferences or distinction among them. The Term Borrowers shall be liable for all amounts due to Administrative Agent and the Term Lenders under this Agreement, regardless of which Term Borrower actually receives the relevant Term Loans hereunder or the amount of such Term Loans received or the manner in which the Administrative Agent or any relevant Term Lender accounts for such Term Loans or other extensions of credit on its books and records. The Applicable Obligations of the Term Borrowers with respect to Term Loans made to one of them, and the Applicable Obligations arising as a result of the joint and several liability of one of the Term Borrowers hereunder with respect to Term Loans made to the other Term Borrower hereunder, shall be separate and distinct obligations, but all such other Applicable Obligations shall be primary obligations of both Term Borrowers. (b) If and to the extent that any Term Borrower shall fail to make any payment with respect to any of the Applicable Obligations as and when due or to perform any of the Applicable Obligations in accordance with the terms thereof, then in each such event, the other Term Borrower will make such payment with respect to, or perform, such Applicable Obligation. (c) The obligations of each Term Borrower under this Section 2.24 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Term Borrower. The joint and several liability of the Term Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Term Borrower or any of the Term Lenders. (d) The provisions of this Section 2.24 hereof are made for the benefit of the Term Lenders and their successors and assigns, and subject to Article 7 hereof, may be enforced by them from time to time against any Term Borrower as often as occasion therefor may arise and without requirement on the part of Administrative Agent or any Term Lender first to marshal any of its claims or to exercise any of its rights against the other Term Borrower or to exhaust any remedies available to it against the other Term Borrower or to resort to any other source or means of obtaining payment of any of the Applicable Obligations hereunder or to elect any other remedy. The provisions of this Section 2.24 shall remain in effect until the Termination Date. If at any time, any payment, or any part thereof, made in respect of any of the Applicable Obligations is rescinded or must otherwise be restored or returned by Administrative Agent or any Term Lender upon the insolvency, bankruptcy or reorganization of any Term Borrower, or otherwise, the provisions of this Section 2.24 hereof will forthwith be reinstated and in effect as though such payment had not been made. (e) Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the obligations of a Term Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state, federal or foreign law relating to fraudulent conveyances or transfers) then the obligations of such Term Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state, provincial or foreign and including, without limitation, the Bankruptcy Code). (f) With respect to the Applicable Obligations arising as a result of the joint and several liability of the Term Borrowers hereunder with respect to Term Loans or other extensions of credit made to the other Term Borrower hereunder, to the maximum extent permitted by applicable law, each Term Borrower waives, until the occurrence of the Termination Date, any right to enforce any right of subrogation or any remedy which Administrative Agent or any Term Lender now has or may hereafter have against the other Term Borrower, any endorser or any guarantor of all or any part of the Applicable Obligations, and any benefit of, and any right to participate in, any security or collateral given to Administrative Agent or any Term Lender. Any claim which any Term Borrower may have against the other Term Borrower with respect to any payments to the Administrative Agent or the Term Lenders hereunder or under any of the other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Applicable Obligations arising hereunder or thereunder, to the occurrence of the Termination Date. Upon the occurrence of any Event of Default and for so long as the same is continuing, to the maximum extent permitted under applicable law, the Administrative Agent and the Term Lenders may proceed directly and at once, without notice (to the extent notice is waivable under applicable law), against (i) with respect to the Applicable Obligations of the Term Borrowers, any or all of them or (ii) with respect to Applicable Obligations of any Term Borrower, to collect and recover the full amount, or any portion of the Applicable Obligations, without first proceeding against the other Term Borrower or any other Person, or against any security or collateral for the Applicable Obligations. Each Term Borrower consents and agrees that Administrative Agent and Term Lenders shall be under no obligation to marshal any assets in favor of the Term Borrower(s) or against or in payment of any or all of the Applicable Obligations. Subject to the foregoing, in the event that a Term Loan or other extension of credit is made to, or with respect to business of, one Term Borrower and any other Term Borrower makes any payments with respect to such Term Loan or extension of credit, the first Term Borrower shall promptly reimburse such other Term Borrower for all payments so made by such other Term Borrower. (g) Section 2.24(a) above does not apply to any liability to the extent that it would result in the obligations assumed by an English Loan Party constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Xxx 0000Act 2006. (i) Notwithstanding any provisions to the contrary in any Loan Document, the aggregate obligations and liabilities of the Lux Borrower under this Section 2.24 for the obligations of the US Co-Borrower shall be limited at any time to a maximum amount payable by the Lux Borrower not exceeding ninety-five per cent. (95%) of the sum of the Lux Borrower’s 's “capitaux propres” (as referred to in article 34 Annex I to the Grand-Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the Luxembourg law dated Act of 19 December 2002 (the “ Law of 2002”) concerning the register of commerce and companies and the accounting and annual accounts of undertakings, as amended) (the “Own Funds”) and the Lux Borrower’s debt which is subordinated debts in right of payment (dettes subordonnéeswhether generally or specifically) (as referred to in article 34 any claim of any Secured Party under any of the Law of 2002 Loan Documents (the “Lux Subordinated Debt”), as determined on the basis of the then latest available annual accounts of the Lux Borrower duly established in accordance with applicable accounting rules, as at the date on which any obligation of the Lux Borrower under this Section 2.24 is called. (ii) Where, for the purpose of any determination under clause (h)(i) above, no duly established annual accounts of the Lux Borrower are available for the relevant reference period (which, for the avoidance of doubt, includes a situation where, in respect of any determination to be made under clause (h)(i) above, no final annual accounts have been established in due time in respect of the then most recently ended financial year) the Lux Borrower shall, promptly, establish unaudited interim accounts (as of the date of the end of the then most recent financial quarter) or annual accounts (as applicable) duly established in accordance with applicable accounting rules, pursuant to which the Lux Borrower’s Own Funds and Lux Subordinated Debt will be determined. If the Lux Borrower fails to provide such unaudited interim accounts or annual accounts (as applicable) within 20 Business Days as from the request of the Administrative Agent, the Administrative Agent may appoint, at the cost of the Borrowers, an independent auditor (réviseur d’entreprises d'entreprises agréé) or an independent reputable investment bank which, acting reasonably, shall undertake the determination of the Lux Borrower’s Own Funds and Lux Subordinated Debt in accordance with Luxembourg accounting principles. In order to prepare such determination, the independent auditor (réviseur d’entreprises d'entreprises agréé) or the independent reputable investment bank, as applicable, shall take into consideration such available elements and facts at such time including, without limitation, the latest annual accounts of the Lux Borrower and its subsidiaries, any recent valuation of the assets of the Lux Borrower and its subsidiaries (if available), the market value of the assets of the Lux Borrower and its subsidiaries as if sold between a willing buyer and a willing seller as a going concern using a standard market multi criteria approach combining market multiples, book value, discounted cash flow or comparable public transaction of which price is known (taking into account circumstances at the time of the valuation and making all necessary adjustments to the assumption being used) and acting in a reasonable manner. (iii) The limitation set forth in this clause (h) shall not apply to any Obligations of any of the Lux Borrower’s direct or indirect subsidiaries.