Common use of US Guarantors Clause in Contracts

US Guarantors. (a) Each US Borrower and each Guarantor whose jurisdiction of organisation is a state or territory of the United States (a “US Guarantor”) and each Secured Creditor (as defined in the Security Documents governed by US law, the “US Security Documents”) (by its acceptance of the benefits of the guarantee under Clause 24 (Guarantees)) hereby confirms that it is its intention that the guarantee under Clause 24 (Guarantees) shall not constitute a fraudulent transfer or conveyance for purposes of any bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act or any similar Federal, state or foreign law. To effectuate the foregoing intention, each US Guarantor and each Secured Creditor (by its acceptance of the benefits of the guarantee under Clause 24 (Guarantees)) hereby irrevocably agrees that the Guaranteed Obligations (as defined in the US Security Documents) shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of such US Guarantor that are relevant under such laws, and after giving effect to any rights to contribution pursuant to any agreement providing for an equitable contribution among such US Guarantor and the other Guarantors, result in the Guaranteed Obligations of such US Guarantor in respect of such maximum amount not constituting a fraudulent transfer or conveyance. (b) Notwithstanding any term or provision of this Clause 25 (Guarantee Limitations) or any other term in this Agreement or any other Finance Document, with respect to any US Borrower that is a “United States person” (as such term is defined in Section 7701(a)(30) of the Code), (a) no direct or indirect Foreign Subsidiary of such US Borrower shall guarantee the obligations of, or pledge any of its assets as security for the obligations of, any US Borrower and (b) not more than 65% of the voting stock or other voting equity interests of any Foreign Subsidiary of any US Borrower shall be pledged as security for the obligations of any US Borrower. If following a change in the relevant sections of the Code or the regulations, rules, rulings, notices or other official pronouncements issued or promulgated thereunder, counsel for the US Borrowers reasonably acceptable to the Facility Agent does not within 30 days after a request from the Facility Agent deliver evidence, in form and substance reasonably satisfactory to the Facility Agent, with respect to any Foreign Subsidiary of any US Borrower which has not already had all of its share capital pledged pursuant to a Security Document to secure all of the obligations of the US Borrowers under the Finance Documents that (i) a pledge of more than 65% of the total combined voting power of all classes of share capital of such Foreign Subsidiary entitled to vote and (ii) the guarantee by such Foreign Subsidiary of all of the obligations of all of the Obligors (and not only the Obligors that are not US Borrowers) pursuant to this Clause 25 or any other provision of this Agreement or any other Finance Document, in any such case could reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for US federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent for US federal income tax purposes, then in the case of a failure to deliver the evidence described in clause (i) above, that portion of such Foreign Subsidiary’s outstanding share capital so issued by such Foreign Subsidiary, in each case not theretofore pledged pursuant to a Security Document to secure all of the obligations of all of the Obligors (and not only the Obligors that are not US Borrowers) under the Finance Documents, shall automatically be pledged to the Security Agent for the benefit of the Finance Parties to secure all obligations of the Obligors (and not only the Obligors that are not US Borrowers) under the Finance Documents, and in the case of a failure to deliver the evidence described in clause (ii) above, the guarantee provided by such Foreign Subsidiary pursuant to this Clause 25 or any other provisions of this Agreement or any other Finance Document shall automatically guarantee all of the obligations of all of the Obligors (and not only the Obligors that are not US Borrowers) under the Finance Documents. (c) Notwithstanding any term or provision of this Clause 25 (Guarantee Limitations) or any other term in this Agreement or any other Finance Document, if at least 20 days prior to the beginning of the relevant US Borrower’s tax year Bidco delivers to the Facility Agent: (i) an analysis which provides evidence (including a confirmation by the Auditors that the conclusion reached in the analysis is in line with the current interpretation of the applicable tax rules) and confirms that Section 163(j) of the Code (or any successor provision) would apply to disallow a deduction for an interest expense paid and a US Borrower would have “excess interest expense” (within the meaning of Section 163(j)(2) of the Code) in excess of $1,500,000 as a result of any guarantee or security provided by any member of the Group under the Finance Documents; and (ii) a certificate confirming that no Potential Event of Default has occurred and is continuing. then with effect from the beginning of the tax year to which such analysis relates, no guarantee or security provided by any member of the Group shall guarantee or secure the obligations of such US Borrower to the extent (i) such member of the Group is a “related person” (as defined in Section 267(b) or Section 707(b)(1) of the Code) to such US Borrower, (ii) such member of the Group is not a “United States person” (as defined in Section 7701(a)(30) of the Code) and (iii) such US Borrower does not own a “controlling interest” (as defined in Section 163(j) of the Code) in such member of the Group, provided that the guarantee and security limitations set forth in this Clause 25.1(c) shall cease to be effective upon the end of the tax year to which such analysis relates, provided further that notwithstanding the foregoing provisions of this Clause 25.1(c) the guarantee and security limitations set forth in this Clause 25.1(c) shall be effective from the Completion Date until the end of the then current tax year of each US Borrower. The Facility Agent shall send an acknowledgement of receipt to Bidco in respect of any analysis received from Bidco in accordance with this Clause 25.1(c) prior to the beginning of the relevant tax year of the relevant US Borrower to which that such analysis relates.

US Guarantors. (a) Each US Borrower Guarantor affirms that its obligations and each Guarantor whose jurisdiction of organisation is a state or territory of the United States indemnity under this Clause 22 include Post-Petition Interest. (a “US Guarantor”b) and each Secured Creditor (as defined in the Security Documents governed by US law, the “US Security Documents”) (by its acceptance of the benefits Notwithstanding any provision of the guarantee under in this Clause 24 (Guarantees)) hereby confirms that 22 to the contrary, it is its intention intended that the obligations under this guarantee under Clause 24 (Guarantees) of any US Guarantor shall not constitute a fraudulent transfer or conveyance for purposes guarantee of any bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act or any similar Federal, state or foreign law. To effectuate the foregoing intention, each US Guarantor and each Secured Creditor (by its acceptance of the benefits of the guarantee under Clause 24 (Guarantees)) hereby irrevocably agrees that the Guaranteed Excluded Swap Obligations (as defined in below). (c) If any obligations of any US Guarantor under this Clause 22 to the Finance Parties are or could be avoided or subject to avoidance as a Fraudulent Conveyance, the obligations of such US Security Documents) Guarantor under this guarantee shall be limited to and shall not exceed the maximum amount as will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities will result in the obligations of such US Guarantor that are relevant under such laws, and after giving effect to any rights to contribution pursuant to any agreement providing for an equitable contribution among such US Guarantor and the other Guarantors, result in the Guaranteed Obligations of such US Guarantor in respect of such maximum amount this Clause 22 not constituting a fraudulent transfer or conveyanceFraudulent Conveyance. (bd) Notwithstanding any term or provision of this Clause 25 (Guarantee Limitations) or any other term in this Agreement or any other Finance Document, with respect to any US Borrower that is a “United States person” (as such term is defined in Section 7701(a)(30) of the Code), (a) no direct or indirect Foreign CFC Subsidiary of such US Borrower shall guarantee the obligations of, or pledge any of its assets as security for the obligations of, any US Borrower Borrower, and (b) not no more than 65% of the total voting power of all classes of stock or other voting equity interests of any Foreign each such CFC Subsidiary of any US Borrower that are entitled to vote shall be pledged as security for the obligations of any US Borrower. If following a change in the relevant sections of the Code or the regulations. (e) Each Qualified ECP Guarantor hereby jointly and severally absolutely, rules, rulings, notices unconditionally and irrevocably undertakes to provide such funds or other official pronouncements issued or promulgated thereunder, counsel for the US Borrowers reasonably acceptable support as may be needed from time to the Facility Agent does not within 30 days after a request from the Facility Agent deliver evidence, in form and substance reasonably satisfactory time by each other Guarantor to the Facility Agent, with respect to any Foreign Subsidiary of any US Borrower which has not already had honour all of its share capital pledged pursuant obligations under this Agreement in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Clause 22.12(e) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this clause 21.12(e), or otherwise under this Agreement, a Fraudulent Conveyance, and not for any greater amount). Each Qualified ECP Guarantor intends that this Clause 22.12(e) constitute, and this clause 22.12(e) shall be deemed to constitute, a Security Document to secure “keepwell, support, or other agreement” for the benefit of each other Guarantor for all purposes of section 1a(18)(A)(v)(II) of the US Commodity Exchange Act. The obligations of the US Borrowers Obligors under the guarantee set out in this Clause 22 shall not include any Excluded Swap Obligations, and no Guarantor may claim any contribution from any other Guarantor of any other Obligor’s obligations under the Finance Documents in respect of Excluded Swap Obligations. (f) Each US Guarantor (a) acknowledges that the Finance Parties would not have made any Loan to any Borrower and will not continue to make any Loan to any Borrower but for this guarantee; (ib) a pledge of more than 65% of the total combined voting power of all classes of share capital of such Foreign Subsidiary entitled to vote and (ii) warrants that each US Guarantor has given the guarantee by such Foreign Subsidiary of all of the obligations of all of the Obligors (and not only the Obligors that are not US Borrowers) pursuant to this Clause 25 or any other provision of this Agreement or any other Finance Document, in any such case could reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for US federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent for US federal income tax purposes, then in the case of a failure to deliver the evidence described in clause (i) above, that portion of such Foreign Subsidiary’s outstanding share capital so issued by such Foreign Subsidiary, in each case not theretofore pledged pursuant to a Security Document to secure all of the obligations of all of the Obligors (and not only the Obligors that are not US Borrowers) under the Finance Documents, shall automatically be pledged to the Security Agent for the benefit of induce the Finance Parties to secure all obligations of the Obligors make and to continue to make Loans to Borrowers; (and not only the Obligors c) agrees that are not US Borrowers) under the Finance Documents, and Parties may rely on this guarantee in the case of a failure continuing to deliver the evidence described in clause make any Loan to any Borrower without notice to any US Guarantor; (iid) above, the guarantee provided by such Foreign Subsidiary pursuant to this Clause 25 or any other provisions of this Agreement or any other Finance Document shall automatically guarantee all of the obligations of all of the Obligors (and not only the Obligors warrants that are not US Borrowers) under the Finance Documentseach US. (cg) Notwithstanding any term or provision Guarantor has received good and valuable consideration for this guarantee; (e) waives acceptance of this Clause 25 guarantee; (Guarantee Limitationsf) or warrants that each US Guarantor has not given this guarantee in reliance upon the existence of any security; (g) acknowledges receipt of notice of any Loans to the Borrowers before this date; (h) waives notice of any Loans made to any Borrower after this date; (i) waives protest and any other term notice of failure to pay the amounts due under any Finance Document or to perform any agreement relating to any Loan; U) acknowledges that each US Guarantor has read this guarantee and all other documents in connection with this Agreement or any other Finance Document, if at least 20 days prior guarantee; and (k) acknowledges that each US Guarantor understands and agrees to the beginning of the relevant US BorrowerGuarantor’s tax year Bidco delivers obligations under the guarantee. The foregoing waivers apply irrespective of any law or any provision of a Finance Document to the Facility Agent:contrary. (ih) an analysis which provides evidence (including a confirmation by the Auditors that the conclusion reached in the analysis is in line with the current interpretation of the applicable tax rules) and confirms that Section 163(j) of the Code (or any successor provision) would apply to disallow a deduction for an interest expense paid and a US Borrower would have “excess interest expense” (within the meaning of Section 163(j)(2) of the Code) in excess of $1,500,000 as a result of any guarantee or security provided by any member of the Group under the Finance Documents; and (ii) a certificate confirming that no Potential Event of Default has occurred and is continuing. then with effect from the beginning of the tax year to which such analysis relates, no guarantee or security provided by any member of the Group shall guarantee or secure the obligations of such US Borrower In addition to the extent (i) such member of the Group is a “related person” (as defined in Section 267(b) or Section 707(b)(1) of the Code) to such US Borrower, (ii) such member of the Group is not a “United States person” (as defined in Section 7701(a)(30) of the Code) and (iii) such US Borrower does not own a “controlling interest” (as defined in Section 163(j) of the Code) in such member of the Group, provided that the other guarantee and security limitations set forth in this Clause 25.1(c22.12 as of any date of determination, the maximum liability of each US Obligor shall not exceed the maximum amount of liability which could be asserted against the US Obligor hereunder (subject to any rights of contribution or indemnification from or by any other Obligor) shall cease to be effective upon without: (i) rendering such US Obligor “insolvent” within the end meaning of Section 101(32) of the tax year US Bankruptcy Law, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”); (ii) leaving such US Obligor with unreasonably small capital or assets, within the meaning of Section 548 of the US Bankruptcy Law, Section 4 of the UFTA or Section 5 of the UFCA; or (iii) leaving such Xxxxxxx unable to which pay its debts as they become due within the meaning of Section 548 of the US Bankruptcy Law, Section 4 of the UFTA or Section 5 of the UFCA (provided that this guarantee limitation shall not affect any US Obligor’s several liability for the entire amount of the obligations under the Finance Documents (up to such analysis relates, provided further that notwithstanding maximum liability). (i) For the foregoing provisions purposes of this Clause 25.1(c) the guarantee and security limitations set forth in this Clause 25.1(c) shall be effective from the Completion Date until the end of the then current tax year of each US Borrower. The Facility Agent shall send an acknowledgement of receipt to Bidco in respect of any analysis received from Bidco in accordance with this Clause 25.1(c) prior to the beginning of the relevant tax year of the relevant US Borrower to which that such analysis relates.22.12:

US Guarantors. 15.13.1. The Company shall procure that no US Guarantor shall assume, incur or otherwise permit to be outstanding any Indebtedness or any other obligation of whatsoever nature, save for Permitted Indebtedness. The Company shall also procure that no US Guarantor shall be a party to, or its assets bound by, any contract, agreement, commitment or undertaking other than under: (a) Each any Loan Document or US Borrower and each Guarantor whose jurisdiction of organisation Loan Document to which it is a state party; (b) any Subordinated Shareholder Loan Agreement to which it is a party as a borrower; (c) without derogating from clause 15.14 below, the Voting Agreements (other than those Voting Agreements that have, after the date hereof, terminated or territory of the United States expired in accordance with their terms) to which it is a party; (a “US Guarantor”d) and each Secured Creditor any Approved Voting Agreement (as defined in clause 15.14.3 below) to which it is a party (other than those Approved Voting Agreements that have, after the Security Documents governed by date hereof, terminated or expired in accordance with their terms); (e) without derogating from clause 15.13.5 below, any Stock Purchase Plan; and (f) the making of intercompany loans pursuant to which no US lawGuarantor has any commitment, liability or obligation. Without derogating from the undertakings of the Company set forth in this clause 15.13.1, the “Company shall procure that the Deferred Tax Liability shall at all times not be Indebtedness of any US Security Documents”) (Guarantor and, without derogating from its foregoing undertakings as aforesaid, if and to the extent any Deferred Tax Liability becomes payable by its acceptance any US Guarantor, the Company undertakes, forthwith, to pay such Indebtedness. 15.13.2. The Company shall procure that no US Guarantor shall do any of the benefits following: (a) carry on any business of whatsoever nature save for the holding of, or having an interest in, that part of the guarantee under Clause 24 (Guarantees)) hereby confirms that it is its intention that the guarantee under Clause 24 (Guarantees) shall not constitute a fraudulent transfer or conveyance for purposes of any bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act or any similar Federal, state or foreign law. To effectuate the foregoing intention, each US Guarantor and each Secured Creditor (Collateral pledged by its acceptance of the benefits of the guarantee under Clause 24 (Guarantees)) hereby irrevocably agrees that the Guaranteed Obligations (as defined in the US Security Documents) shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of such US Guarantor that are relevant under such laws, and after giving effect the Pledge Agreement to any rights to contribution pursuant to any agreement providing for an equitable contribution among which such US Guarantor is party as pledgor and, subject to clause 15.13.4 below, the holding of additional EOI Common Shares and any other Permitted Activities; (b) subject to clauses 7.6 and 7.7 above and clause 15.13.4 below, sell, transfer or otherwise dispose of any of the Collateral (including, without limitation, the EOI Pledged Shares) or any rights arising therein or in relation thereto; (c) make any loans or advances or give any guarantee to, or for the benefit of, any other GuarantorsPerson, result save in favour of the Guaranteed Obligations Bank under the Loan Documents and BLUSA under the US Loan Documents and save for the making of such intercompany loans pursuant to which no US Guarantor shall have any commitment, liability or obligation; (d) amend its Organisational Documents in any respect without the prior written consent of the Bank and BLUSA; (e) issue, release or purchase (other than purchase of EOI securities) any securities (including, without limitation, any security convertible into membership interests), unless, in respect of the issue by a US Guarantor of any securities, such maximum amount not constituting securities are issued to, released to, or purchased by, a fraudulent transfer or conveyance. (b) Notwithstanding any term or provision Guarantor Shareholder and simultaneously duly pledged by way of this Clause 25 (Guarantee Limitations) or any other term a first priority perfected security interest in this Agreement or any other Finance Document, with respect to any US Borrower that is a “United States person” (as such term is defined in Section 7701(a)(30) favour of the Code), (a) no direct or indirect Foreign Subsidiary of such US Borrower shall guarantee the obligations of, or pledge any of its assets as security for the obligations of, any US Borrower and (b) not more than 65% of the voting stock or other voting equity interests of any Foreign Subsidiary of any US Borrower shall be pledged as security for the obligations of any US Borrower. If following a change in the relevant sections of the Code or the regulations, rules, rulings, notices or other official pronouncements issued or promulgated thereunder, counsel for the US Borrowers reasonably acceptable to the Facility Agent does not within 30 days after a request from the Facility Agent deliver evidence, in form and substance reasonably satisfactory to the Facility Agent, with respect to any Foreign Subsidiary of any US Borrower which has not already had all of its share capital pledged pursuant to a Security Document to secure all of the obligations of the US Borrowers under the Finance Documents that (i) a pledge of more than 65% of the total combined voting power of all classes of share capital of such Foreign Subsidiary entitled to vote and (ii) the guarantee by such Foreign Subsidiary of all of the obligations of all of the Obligors (and not only the Obligors that are not US Borrowers) pursuant to this Clause 25 or any other provision of this Agreement or any other Finance Document, in any such case could reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for US federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent for US federal income tax purposes, then in the case of a failure to deliver the evidence described in clause (i) above, that portion of such Foreign Subsidiary’s outstanding share capital so issued by such Foreign Subsidiary, in each case not theretofore pledged pursuant to a Security Document to secure all of the obligations of all of the Obligors (and not only the Obligors that are not US Borrowers) under the Finance Documents, shall automatically be pledged to the Security Collateral Agent for the benefit of the Finance Parties Bank and BLUSA to secure all obligations repayment of the Obligors Secured Obligations under a Security Document; and (f) elect to be treated as a corporation for US state or federal tax purposes. 15.13.3. The Company shall procure that no US Guarantor shall assume, incur or otherwise permit to be outstanding any Indebtedness of whatsoever nature under a Subordinated Shareholder Loan unless such Subordinated Shareholder Loan shall have first been duly pledged, by the relevant Subordinated Lender, by way of a first priority perfected security interest in favour of the Collateral Agent for the benefit of the Bank and not only BLUSA to secure repayment of the Obligors Secured Obligations under a Pledge Agreement that are not US Borrowers) has been executed and delivered to the Collateral Agent either on or before the Amendment Closing Date and/or otherwise, if made after the Amendment Closing Date, under a Pledge Agreement in form and substance reasonably acceptable to the Finance DocumentsCollateral Agent, the Bank and BLUSA and in respect of which the case of Collateral Agent, the Bank and BLUSA had first received a failure legal opinion in a form reasonably acceptable to deliver the evidence described in them. Without derogating from clause (ii) 7.7 above, the guarantee provided by such Foreign Subsidiary pursuant to this Clause 25 for so long as no Default has occurred or any other provisions of this Agreement is continuing, or any other Finance Document shall automatically guarantee all of the obligations of all of the Obligors (and not only the Obligors that are not US Borrowers) under the Finance Documents. (c) Notwithstanding any term or provision of this Clause 25 (Guarantee Limitations) or any other term in this Agreement or any other Finance Document, if at least 20 days prior to the beginning of the relevant US Borrower’s tax year Bidco delivers to the Facility Agent: (i) an analysis which provides evidence (including a confirmation by the Auditors that the conclusion reached in the analysis is in line with the current interpretation of the applicable tax rules) and confirms that Section 163(j) of the Code (or any successor provision) would apply to disallow a deduction for an interest expense paid and a US Borrower would have “excess interest expense” (within the meaning of Section 163(j)(2) of the Code) in excess of $1,500,000 will occur as a result of the repayment of principal or interest on any guarantee or security provided by any member Subordinated Shareholder Loans, a US Guarantor may repay principal and interest of the Group under the Finance Documents; and (ii) a certificate confirming that no Potential Event of Default has occurred and is continuing. then with effect from the beginning of the tax year to which such analysis relates, no guarantee or security provided by any member of the Group shall guarantee or secure the obligations of such US Borrower to the extent (i) such member of the Group is a “related person” (as defined in Section 267(b) or Section 707(b)(1) of the Code) to such US Borrower, (ii) such member of the Group is not a “United States person” (as defined in Section 7701(a)(30) of the Code) and (iii) such US Borrower does not own a “controlling interest” (as defined in Section 163(j) of the Code) in such member of the Group, provided that the guarantee and security limitations set forth in this Clause 25.1(c) shall cease to be effective upon the end of the tax year to which such analysis relates, provided further that notwithstanding the foregoing provisions of this Clause 25.1(c) the guarantee and security limitations set forth in this Clause 25.1(c) shall be effective from the Completion Date until the end of the then current tax year of each US Borrower. The Facility Agent shall send an acknowledgement of receipt to Bidco in respect of any analysis received from Bidco Subordinated Shareholder Loan in accordance with this Clause 25.1(c) prior to the beginning provisions of the relevant tax year of the relevant US Borrower to which that such analysis relatesGuarantor Subordination Agreement.