Common use of The Canadian Guarantee Clause in Contracts

The Canadian Guarantee. To the fullest extent permitted by Law, each Canadian Guarantor unconditionally guarantees, jointly and severally with the other Canadian Guarantors, as a primary obligor and not merely as a surety: (x) the due and punctual payment of: (i) all principal of and interest (including, without limitation, any interest which accrues after the commencement of any proceeding of the type described in Section 8.01(f) or (g) of the Credit Agreement (each an “Insolvency or Liquidation Proceeding”), whether or not allowed or allowable as a claim in any such proceeding) on all Revolving Credit Loans and L/C Obligations incurred by any Other Loan Party as a Borrower under, or any Note issued by any Other Loan Party as a Borrower pursuant to, the Credit Agreement or any other Loan Document; (ii) all amounts now or hereafter payable by any Other Loan Party as a Guarantor pursuant to any Loan Document; (iii) all reasonable, documented, out-of-pocket fees and expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by any Other Loan Party (including, without limitation, any amounts which accrue after the commencement of any Insolvency or Liquidation Proceeding with respect to such Other Loan Party, whether or not allowed or allowable as a claim in any such proceeding) pursuant to the Credit Agreement or any other Loan Document; (iv) all reasonable, documented, out-of-pocket expenses of any Agent as to which one or more of them have a right to reimbursement by any Loan Party under Section 10.04(a) of the Credit Agreement or under any other similar provision of any Loan Document, including, without limitation, any and all sums advanced by any Agent to preserve the Collateral or preserve its security interests in the Collateral to the extent permitted under any Loan Document or applicable Law; (v) all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement by any Loan Party under Section 10.04(b) of the Credit Agreement or under any other similar provision of any Loan Document; (vi) all other amounts now or hereafter payable by any Other Loan Party and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any Insolvency or Liquidation Proceeding with respect to such Other Loan Party, whether or not allowed or allowable as a claim in any such proceeding) on the part of any Other Loan Party pursuant to any Loan Document; (vii) all Cash Management Obligations of a Loan Party owed or owing under any Secured Cash Management Agreement to a Cash Management Bank; and (viii) all Swap Obligations of a Loan Party permitted under the Credit Agreement owed or owing under any Secured Hedge Agreement to any Hedge Bank; in each case together with all renewals, modifications, consolidations or extensions thereof and whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in connection with any notes, bills or other instruments accepted by any Secured Party in connection therewith), together in each case with all renewals, modifications, consolidations or extensions thereof; and (y) the due and punctual performance of all covenants, agreements, obligations and liabilities of each Other Loan Party under or pursuant to the Finance Documents (all such monetary and other obligations referred to in clauses (x) and (y) above being herein collectively referred to as the “Guaranteed Obligations”). The books and records of the Administrative Agent showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Canadian Guarantor and conclusive for the purpose of establishing the amount of the Guaranteed Obligations. Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Canadian Guarantor hereunder with respect to Guaranteed Obligations owed by any Other Loan Party shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such Canadian Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under any provisions of applicable Law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Canadian Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Canadian Guarantor (i) in respect of intercompany indebtedness to any Other Loan Party or any of its Affiliates to the extent that such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by such Canadian Guarantor hereunder or (B) has been pledged to, and is enforceable by, the Collateral Agent on behalf of the Secured Parties and (ii) under any guarantee of Indebtedness subordinated in right of payment to the Guaranteed Obligations which guarantee contains a limitation as to a maximum amount similar to that set forth in this paragraph pursuant to which the liability of such Canadian Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets of such Canadian Guarantor to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of such Canadian Guarantor pursuant to (i) applicable Law or (ii) any agreement providing for an equitable allocation among such Canadian Guarantor and any Other Loan Party and its Affiliates of obligations arising under guaranties by such parties (including the agreements in Article II of this Agreement). If any Canadian Guarantor’s liability hereunder is limited pursuant to this paragraph to an amount that is less than the total amount of the Guaranteed Obligations, then it is understood and agreed that the portion of the Guaranteed Obligations for which such Canadian Guarantor is liable hereunder shall be the last portion of the Guaranteed Obligations to be repaid.

The Canadian Guarantee. To the fullest extent permitted by Law, each Canadian Guarantor unconditionally guaranteesguarantees (and, to the extent party to the Existing Guarantee, hereby confirms, restates and continues the prior guarantees as set forth in the Existing Guarantee), jointly and severally with the other Canadian Guarantors, as a primary obligor and not merely as a surety: (x) the due and punctual payment of: (i) all principal of and interest (including, without limitation, any interest which accrues after the commencement of any proceeding of the type described in Section 8.01(f) or (g) of the Credit Agreement (each an “Insolvency or Liquidation Proceeding”), whether or not allowed or allowable as a claim in any such proceeding) on all Revolving Credit Loans and L/C Obligations incurred by any Other Loan Party as a Borrower under, or any Note issued by any Other Loan Party as a Borrower pursuant to, the Credit Agreement or any other Loan Document; (ii) all amounts now or hereafter payable by any Other Loan Party as a Guarantor pursuant to any Loan Document; (iii) all reasonable, documented, out-of-pocket fees and expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by any Other Loan Party (including, without limitation, any amounts which accrue after the commencement of any Insolvency or Liquidation Proceeding with respect to such Other Loan Party, whether or not allowed or allowable as a claim in any such proceeding) pursuant to the Credit Agreement or any other Loan Document; (iv) all reasonable, documented, out-of-pocket expenses of any Agent as to which one or more of them have a right to reimbursement by any Loan Party under Section 10.04(a) of the Credit Agreement or under any other similar provision of any Loan Document, including, without limitation, any and all sums advanced by any Agent to preserve the Collateral or preserve its security interests in the Collateral to the extent permitted under any Loan Document or applicable Law; (v) all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement by any Loan Party under Section 10.04(b) of the Credit Agreement or under any other similar provision of any Loan Document; (vi) all other amounts now or hereafter payable by any Other Loan Party and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any Insolvency or Liquidation Proceeding with respect to such Other Loan Party, whether or not allowed or allowable as a claim in any such proceeding) on the part of any Other Loan Party pursuant to any Loan Document; (vii) all Cash Management Obligations of a Loan Party owed or owing under any Secured Cash Management Agreement to a Cash Management Bank; and (viii) all Swap Obligations of a Loan Party permitted under the Credit Agreement owed or owing under any Secured Hedge Agreement to any Hedge Bank; in each case together with all renewals, modifications, consolidations or extensions thereof and whether now or hereafter due, owing or incurred in any manner, whether actual or contingent, whether incurred solely or jointly with any other Person and whether as principal or surety (and including all liabilities in connection with any notes, bills or other instruments accepted by any Secured Party in connection therewith), together in each case with all renewals, modifications, consolidations or extensions thereof; and (y) the due and punctual performance of all covenants, agreements, obligations and liabilities of each Other Loan Party under or pursuant to the Finance Documents (all such monetary and other obligations referred to in clauses (x) and (y) above being herein collectively referred to as the “Guaranteed Obligations”). The books and records of the Administrative Agent showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Canadian Guarantor and conclusive for the purpose of establishing the amount of the Guaranteed Obligations. Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Canadian Guarantor hereunder with respect to Guaranteed Obligations owed by any Other Loan Party shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such Canadian Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under any provisions of applicable Law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Canadian Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Canadian Guarantor (i) in respect of intercompany indebtedness to any Other Loan Party or any of its Affiliates to the extent that such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by such Canadian Guarantor hereunder or (B) has been pledged to, and is enforceable by, the Collateral Agent on behalf of the Secured Parties and (ii) under any guarantee of Indebtedness subordinated in right of payment to the Guaranteed Obligations which guarantee contains a limitation as to a maximum amount similar to that set forth in this paragraph pursuant to which the liability of such Canadian Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets of such Canadian Guarantor to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of such Canadian Guarantor pursuant to (i) applicable Law or (ii) any agreement providing for an equitable allocation among such Canadian Guarantor and any Other Loan Party and its Affiliates of obligations arising under guaranties by such parties (including the agreements in Article II of this Agreement). If any Canadian Guarantor’s liability hereunder is limited pursuant to this paragraph to an amount that is less than the total amount of the Guaranteed Obligations, then it is understood and agreed that the portion of the Guaranteed Obligations for which such Canadian Guarantor is liable hereunder shall be the last portion of the Guaranteed Obligations to be repaid.