Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 2 contracts
Sources: Note Purchase Agreement (Green Thumb Industries Inc.), Note Purchase Agreement
Joint and Several Liability. Each The liability of the Issuers is accepting Borrowers for all of the Obligations shall be joint and several regardless of which Borrower actually receives loans or other extensions of credit hereunder or the amount of such loans received or the manner in which the Agent accounts for such loans or other extensions of credit on its books and records. Each Borrower's Obligations with respect to Revolving Loans made to it or Letters of Credit issued for its account, and related fees, costs and expenses, and each Borrower's Obligations arising as a result of the joint and several liability hereunder in consideration of the financial accommodation Borrowers hereunder, with respect to be provided by Revolving Loans made to the Purchasers under this Agreement, other Borrower hereunder or Letters of Credit issued for the mutual benefitaccount of the other Borrower hereunder, directly together with the related fees, costs and indirectlyexpenses, shall be separate and distinct obligations, all of which are primary obligations of each Borrower. Each Borrower's Obligations arising as a result of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers Borrowers hereunder with respect to loans or other extensions of credit made to the payment and performance other Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (i) the validity of enforceability, avoidance or subordination of the Obligations arising under this Agreement and of the other Loan Documents, it being the intention Borrower or of any promissory note or other document evidencing all of any part of the parties hereto that all Obligations of the other Borrower, (ii) the absence of any attempt to collect the Obligations shall be from the joint and several obligations other Borrower, any other guarantor, or any other security therefor, or the absence of each any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment Agent with respect to any provision of any instrument evidencing the Obligations of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, made or any other agreement now or hereafter executed by the other Borrower and delivered to the Agent, (iv) the failure by the Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of the other Borrower, (v) the Agent's election, in respect any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by the other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Agent's claim(s) for repayment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any Borrower under Section 502 of the Issuers shall be adjudicated to be invalid Bankruptcy Code, or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfersviii) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee circumstance which may be available to it under applicable law (other than payment in full might constitute a legal or equitable discharge or defense of a guarantor or of the Obligations)other Borrower.
Appears in 2 contracts
Sources: Loan and Security Agreement (Trend Lines Inc), Loan and Security Agreement (Trend Lines Inc)
Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to (a) Unless otherwise specified herein, each Borrower agrees that it shall be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of liable for all of the Obligations arising of the Borrowers hereunder or under any other Loan Document, whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise. Without limiting the generality of the foregoing, each Borrower’s liability shall extend to all amounts that constitute part of its Obligations under the Loan Documents and would be owed by the other Borrower (such other Borrower in that capacity being herein referred to as the “Co-Borrower”) to any Secured Party under or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such Co-Borrower.
(b) For the purposes of this Agreement and the other Loan DocumentsNotes, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If Borrowers shall be deemed to be the Co-Borrower and to the extent that any of the Issuers shall fail to make any payment a co-obligor (obligado solidario) with respect to any of the Obligations as of the other Borrowers hereunder and when due under the Notes, in accordance with Articles 1987, 1988 and 1989 of the Federal Civil Code of Mexico (Código Civil Federal) and related articles contained in the civil codes of the relevant states of Mexico and the Federal District.
(c) The liability of each Borrower hereunder shall be irrevocable, absolute and unconditional irrespective of, and each Borrower hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto against its Co-Borrower;
(ii) any taking, exchange, release or non-perfection of any Pledged Collateral, or any taking, release or amendment or waiver of, or consent to perform departure from, any other guaranty, for all or any of the Borrowers’ Obligations in accordance with under the terms Loan Documents without its prior consent;
(iii) any manner of application of Pledged Collateral, or proceeds thereof, then in each such event, the other Issuers will make such payment with respect to, to all or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement Borrowers’ Obligations under the Loan Documents;
(iv) any change, restructuring or termination of the corporate structure or existence of any Borrower or any of its Subsidiaries;
(v) any failure of any Secured Party to disclose to any Loan Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known to such Secured Party (each Borrower waiving any duty on the part of any of the Purchasers first Secured Parties to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to disclose such information);
(vi) 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason circumstance (including, without limitation, because any statute of limitations) or any applicable Laws relating to fraudulent conveyances existence of or transfers) then the Obligations reliance on any representation by any Secured Party that might otherwise constitute a defense of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of available to, or a discharge of, any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full respect of the Obligations)a Co-Borrower.
Appears in 2 contracts
Sources: Credit and Security Agreement (Grupo Imsa Sa De Cv), Credit and Security Agreement (Grupo Imsa Sa De Cv)
Joint and Several Liability. (a) Each of the Issuers Loan Parties is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Administrative Agent and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Loan Parties and in consideration of the undertakings of each of the Issuers other Loan Party to accept joint and several liability for the obligations of each of them. Obligations.
(b) Each of the Issuers Loan Parties, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Loan Parties, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Agreement and the other Loan DocumentsSection 10.15), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations Obligations of each of the Issuers Loan Parties without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Loan Parties shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Loan Parties will make such payment with respect to, or perform, such Obligation. Each .
(d) The Obligations of each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer Loan Parties under the provisions of this Section 1.4 10.19 constitute full recourse obligations Obligations of such Issuer, each of the Loan Parties enforceable against it each such Loan Party to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement as against any particular Loan Party.
(e) Except as otherwise expressly provided in this Agreement, but only to the extent permitted by applicable law, each of the Loan Parties hereby waives notice of acceptance of its joint and several liability, notice of any Loans made, or Letter of Credit issued, extended or renewed under this Agreement, notice of the occurrence of any Event of Default or Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or any Lender under or in respect of any of the Obligations, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement and the other Loan Documents. Each of the Loan Parties hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or any Lender at any time or times in respect of any Event of Default or Default by any of the Loan Parties in the performance or satisfaction of any term, covenant, condition or provision of this Agreement or any of the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent or any Lender 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 of the Loan Parties. Without limiting the generality of the foregoing, but only to the extent permitted by applicable law, each of the Loan Parties assents to any other action or delay in acting or failure to act on the part of the Administrative Agent or any Lender with respect to the failure by any of the Loan Parties 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, regulations thereunder, which might, but for the provisions of this Section 10.19, afford grounds for terminating, discharging or relieving any of the Loan Parties, in whole or in part, from any of its Obligations under this Section 10.19, it being the intention of each of the Loan Parties that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Loan Parties under this Section 10.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Loan Parties under this Section 10.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any of the Loan Parties, the Administrative Agent or any Lender. The joint and several liability of the Loan Parties 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 of the Loan Parties, the Administrative Agent or any Lender.
(f) The provisions of this Section 1.4 10.19 are made for the benefit of the Purchasers Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by any of them from time to time against any or all of the Issuers Loan Parties as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any of the Purchasers Lender first to marshal ▇▇▇▇▇▇▇▇ any of its claims or to exercise any of its rights against the any other Issuers Loan Party or to exhaust any remedies available to it against the any other Issuers Loan Party 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 1.4 10.19 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers any Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersLoan Parties, or otherwise, the provisions of this Section 1.4 10.20 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(i) Each of the Loan Parties hereby irrevocably waives, and agrees that it will not enforce, any provision of its rights of contribution or subrogation against any other Loan Party with respect to the contrary contained herein any liability incurred by such Loan Party hereunder or in under any of the other Loan Documents, any payments made by such Loan Party to the extent Administrative Agent for the Obligations accounts of the Lenders with respect to any of the Issuers Obligations or any collateral security therefor. Such waiver and agreement is for the benefit of the other Loan Parties, the Lenders and the Administrative Agent. If such waiver and agreement shall be adjudicated determined to be invalid or unenforceable by a court of competent jurisdiction, any claim which such Loan Party may have against such other Loan Party with respect to any payments to the Administrative Agent for any reason (includingthe account of the Lenders hereunder are hereby expressly made subordinate and junior in right of payment, without limitationlimitation as to any increases in the Obligations arising hereunder, because to the prior payment in full of all amounts due and owing by such other Loan Party to the Administrative Agent and the Lenders and, in the event of any applicable Laws insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to fraudulent conveyances such other Loan Party, its debts or transfersits assets, whether voluntary or involuntary, all Indebtedness of such other Loan Party owing to the Lenders ("Senior Indebtedness") then shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to such Loan Party therefor. Each Loan Party hereby agrees that for so long as any Obligations are outstanding hereunder the provisions of this Section 10.19(g) may be relied on directly by any holder of Senior Indebtedness regardless of whether such holder is a party hereto.
(ii) Notwithstanding the provisions of the preceding clause (i), each of the Loan Parties shall have and be entitled to (1) all rights of subrogation otherwise provided by law in respect of any payment such Loan Party may make or be obligated to make under this Credit Agreement and (2) all claims (as defined in the Bankruptcy Code) it would have against any of the other Loan Parties in the absence of the preceding clause (i), and to assert and enforce the same, in each case on and after, but at no time prior to , the date (the "Subrogation Trigger Date") which is one (1) year and five (5) days after the date on which all the Obligations have been indefeasibly repaid in full if and only if (A) no Default or Event of Default of the type described in §§13.1(g) or (h) with respect to the other Loan Parties has existed at any time on or after the Closing Date to and including the Subrogation Trigger Date and (B) the existence of the Loan Party's rights under this clause (ii) would not make the Loan Party a creditor (as defined in the Bankruptcy Code) of the other Loan Parties in any insolvency, bankruptcy, reorganization or similar proceeding commenced on or prior to the Subrogation Trigger Date.
(h) Each Loan Party that is a Qualified ECP Guarantor at the time the joint and several obligations, any of the Guaranties or the grant of the security interest under the Loan Documents, in each case, by any Specified Loan Party, becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under this Agreement, any applicable Guaranty and the other Loan Documents in respect of such Issuer hereunder shall be limited Swap Obligation (but, in each case, only up to the maximum amount of such liability that is permissible can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it this Article 10.19 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this clause (other than payment h) shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. Each Qualified ECP Guarantor intends this clause (h) to constitute, and this clause (h) shall be deemed to constitute, a guarantee of the Obligations)obligations of, and a "keepwell, support, or other agreement" for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
Appears in 2 contracts
Sources: Credit Agreement (Global Partners Lp), Credit Agreement (Global Partners Lp)
Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to Borrower shall be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably liable for all amounts due to Agent and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising Lenders under this Agreement and the other Loan DocumentsFinancing Agreements, it being regardless of which Borrower actually receives the intention Loans or Letter of Credit Accommodations hereunder or the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations amount of such Issuer, enforceable against it to Loans received or the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain manner in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, which Agent or any part thereofLender accounts for such Loans, made in respect Letter of any Credit Accommodations or other extensions of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated credit on its books and in effect as though such payment had not been maderecords. Notwithstanding any provision to the contrary contained All references herein or in any of the other Loan DocumentsFinancing Agreements to any of the obligations of Borrowers to make any payment hereunder or thereunder shall constitute joint and several obligations of Borrowers. The Obligations with respect to Loans made to a Borrower, and the Obligations arising as a result of the joint and several liability of a Borrower hereunder, with respect to Loans made to the other Borrower, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers. The Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrower shall, to the fullest extent permitted by law, be unconditional irrespective of (a) the validity or enforceability, avoidance or subordination of the Obligations of any of the Issuers shall be adjudicated to be invalid other Borrower or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances promissory note or transfers) then other document evidencing all or any part of the Obligations of such Issuer hereunder shall be limited the other Borrower, (b) the absence of any attempt to collect the maximum amount that is permissible under applicable Law. To Obligations from the extent that other Borrower, any Loan Party is deemed to be a surety Obligor or guarantor any other security therefor, or the absence of any other Loan Partyaction to enforce the same, (c) the waiver, consent, extension, forbearance or granting of any indulgence by Agent or any Lender with respect to any provisions of any instrument evidencing the Obligations of the other Borrower, or any part thereof, or any other agreement now or hereafter executed by the other Borrower and delivered to Agent or any Lender, (d) the failure by Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrower, (e) the election of Agent and Lenders in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (f) the disallowance of all or any portion of the claim(s) of Agent or any Lender for the repayment of the Obligations of the other Borrower under Section 502 of the Bankruptcy Code, or (g) any other circumstances which might constitute a legal or equitable discharge or defense of an Obligor or of the other Borrower. With respect to the Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrower hereunder, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which Agent or any Lender now has or may hereafter have against any Borrower or Obligor and any benefit of, and any right to participate in, any security or collateral given to Agent or any Lender. At any time an Event of Default exists or has occurred and is continuing, Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations), without first proceeding against the other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Agent and Lenders shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations.
Appears in 2 contracts
Sources: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Joint and Several Liability. (a) Each of the Issuers is accepting Borrower accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Lender under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrower to accept joint and several liability for the obligations of each of them. Obligations.
(b) Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also surety and as a co-debtor, joint and several liability with the each other Issuers Borrower, with respect to the performance of this Agreement and the payment and performance of all of the Obligations (including, without limitation, any obligations arising under this Agreement and the other Loan DocumentsSection), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations Obligation as and when due or to perform any of the Obligations Obligation in accordance with the terms thereof, then then, in each such event, the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. applicable.
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 constitute the absolute and unconditional, full recourse obligations of such Issuer, each Borrower enforceable against it each such 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 Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Advances issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, Forbearance Default or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Lender under or in respect of any Obligation, any requirement of diligence or to mitigate damages and, generally, to the 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 Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any Obligation, the acceptance of any payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Lender 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 Lender in respect of any Obligation, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any Obligation or the addition, substitution or release, in whole or in part, of any Borrower or any part of the security for any Obligation. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of 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 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its obligations under this Section, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrowers. The joint and several liability of each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, constitution or place of formation of any other Borrower or Lender.
(f) Each Borrower represents and warrants to Lender that such Borrower is currently informed of the financial condition of each other Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower hereby covenants that such Borrower will continue to keep informed of each other Borrower’s 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 Obligations.
(g) The provisions of this Section 1.4 are made for the benefit of the Purchasers Lender and their its respective successors and assigns, and may be enforced by them it from time to time against any of the Issuers or all Borrowers as often as occasion therefor may arise and without requirement on the part of Lender, or any of the Purchasers or their respective successors or assigns first to marshal any of its claims or to exercise any of its rights against the any other Issuers Borrower or to exhaust any remedies available to it against the any other Issuers 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 1.4 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lender upon the insolvency, bankruptcy or reorganization any insolvency proceeding of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(h) Each Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against any other Borrower with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Documents, any payments made by it to Lender with respect to any Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the extent prior payment in full in cash of the Obligations and, in the event of any insolvency proceeding relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower.
(i) Each Borrower hereby agrees that, after the occurrence and during the continuance of any Default, Event of Default or Forbearance Default, the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any applicable Laws relating Default, Event of Default or Forbearance Default, such Borrower will not demand, ▇▇▇ for or otherwise attempt to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that collect any Loan Party is deemed to be a surety or guarantor Indebtedness of any other Loan Party, each Borrower owing to such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of the Obligations)such Indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee Lender.
Appears in 2 contracts
Sources: Forbearance Agreement and Amendment to Credit Agreements (Franklin Credit Management Corp/De/), Forbearance Agreement (Franklin Credit Management Corp/De/)
Joint and Several Liability. All Loans, upon funding, shall be deemed to be jointly funded to and received by the Borrowers. Each Borrower is jointly and severally liable under this Agreement for all Obligations, regardless of the Issuers is accepting manner or amount in which proceeds of Loans are used, allocated, shared or disbursed by or among the Borrowers themselves, or the manner in which an Agent and/or any Lender accounts for such Loans on its books and records. Each Borrower shall be liable for all amounts due to the Administrative Agent and/or any Lender from the Borrowers under this Agreement, regardless of which Borrower actually receives Loans hereunder or the amount of such Loans received or the manner in which such Agent and/or such Lender accounts for such Loans on its books and records. Each Borrower’s Obligations with respect to Loans made to it, and such Borrower’s Obligations arising as a result of the joint and several liability of such Borrower hereunder in consideration with respect to Loans made to the other Borrowers hereunder shall be separate and distinct obligations, but all such Obligations shall be primary obligations of such Borrower. The Borrowers acknowledge and expressly agree with the financial accommodation to be provided by Agents and each Lender that the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely Borrower is required solely as a suretycondition to, but also and is given solely as a co-debtorinducement for and in consideration of, joint and several liability with credit or accommodations extended or to be extended under the other Issuers with respect Loan Documents to the payment and performance of any or all of the other Borrowers and is not required or given as a condition of Loans to such Borrower. Each Borrower’s Obligations arising under this Agreement and shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the release of any other Loan DocumentsBorrower or the validity or enforceability, it being the intention avoidance, or subordination of the parties hereto that Obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the Obligations shall be of any other Borrower, (ii) the joint and several obligations absence of each any attempt to collect the Obligations from any other Borrower, or any other security therefor, or the absence of any other action to enforce the Issuers without preferences same, (iii) the waiver, consent, extension, forbearance, or distinction among them. If and to the extent that granting of any of the Issuers shall fail to make indulgence by an Agent and/or any payment Lender with respect to any provision of any instrument evidencing the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, made in respect or any other agreement now or hereafter executed by any other Borrower and delivered to an Agent and/or any Lender, (iv) the failure by an Agent and/or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of any other Borrower, (v) an Agent’s and/or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of an Agent’s and/or any Lender’s claim(s) for the repayment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any other Borrower under Section 502 of the IssuersBankruptcy Code, or otherwise, (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to any Borrower’s Obligations arising as a result of the provisions joint and several liability of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision the Borrowers hereunder with respect to the contrary contained herein or in Loans made to any of the other Loan DocumentsBorrowers hereunder, to the extent such Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any of the Issuers shall be adjudicated to be invalid remedy which an Agent and/or any Lender now has or unenforceable for may hereafter have against any reason (includingother Borrower, without limitation, because of any applicable Laws relating to fraudulent conveyances endorser or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of all or any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full part of the Obligations), and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender. Upon any Event of Default, the Agents may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Agents shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations.
Appears in 2 contracts
Sources: Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.), Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.)
Joint and Several Liability. (a) Each of the Issuers Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Purchasers Secured Parties under this AgreementAgreement with respect to the Revolving Advances, Bridge Loans, and Reimbursement Obligations, for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of the undertakings of each of the Issuers Borrowers to accept joint and several liability for the obligations Obligations of each of them. .
(b) Each of the Issuers Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrower, with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsAgreement, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of all the Issuers Borrowers without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations hereunder as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Borrower will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. .
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 10.13 constitute full recourse obligations of such Issuer, Borrower enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided herein or in the other Loan Documents, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any and all Revolving Advances or Bridge Loans made or Letters of Credit issued under this Agreement, notice of occurrence of any Default or Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by any Secured Party under or in respect of any of the Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Secured Party 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 the Secured Parties in respect of any of the Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of the Secured Parties 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 10.13, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 10.13, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 10.13 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 10.13 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to the other Borrower. The joint and several liability of the 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 either Borrower.
(f) The provisions of this Section 1.4 10.13 are made for the benefit of the Purchasers Secured Parties and their successors and assigns, and may be enforced by them in accordance with the terms of this Agreement from time to time against any either of the Issuers Borrowers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers Secured Party first to marshal ▇▇▇▇▇▇▇▇ any of its their claims or to exercise any of its their rights against the other Issuers Borrower or to exhaust any remedies available to it them against the other Issuers 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 1.4 10.13 shall remain in effect until all the Obligations hereunder shall have been indefeasibly paid in full or otherwise fully satisfiedsatisfied and the Revolving Commitments have been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers any Secured Party upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 10.13 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 2 contracts
Sources: Credit Agreement (MxEnergy Holdings Inc), Credit Agreement (MxEnergy Holdings Inc)
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrowers to accept joint and several liability for the obligations of each of them. .
(b) Each of the Issuers jointly and severally Borrower hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrower with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers either Borrower shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Issuers Borrower will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. obligation.
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 2.19 constitute full recourse obligations of such IssuerBorrower, enforceable against it 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 herein, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement) or of any demand for any payment under this Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Agreement), notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the 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 the Lenders in respect of any of the Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Lenders, 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 2.19, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.19, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any Borrower or any Lender. The joint and several liability of the 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 Borrower or any Lender.
(f) The provisions of this Section 1.4 2.19 are made for the benefit of the Purchasers Administrative Agent, the L/C Issuers, the Swing Line Lenders and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against any of the Issuers either Borrower as often as occasion therefor may arise and without requirement on the part of any of the Purchasers Lender first to marshal any of its claims or to exercise any of its rights against the other Issuers Borrower or to exhaust any remedies available to it against the other Issuers 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 1.4 2.19 shall remain in effect until all of the Obligations hereunder shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lenders upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 2.19 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or .
(g) The Borrowers hereby agree as among themselves that, in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Partyconnection with payments made hereunder, each such Loan Party hereby waives Person shall have a right of contribution from each other Borrower in accordance with applicable Laws. Such contribution rights shall be subordinate and all defenses subject in right of payment to suretyship and guarantee which may be available to it under applicable law (other than payment the Obligations until such time as the Obligations have been irrevocably paid in full and the Commitments relating thereto shall have expired or been terminated, and none of the Obligations)Borrowers shall exercise any such contribution rights until the Obligations have been irrevocably paid in full and the Commitments relating thereto shall have expired or been terminated.
Appears in 2 contracts
Sources: Credit Agreement (Sabra Health Care REIT, Inc.), Credit Agreement (Sabra Health Care REIT, Inc.)
Joint and Several Liability. Each (a) The liability and obligations of each Borrower for payment and performance of the Issuers Obligations to the Administrative Agent and the Lenders under this Agreement or under any of the Loan Documents to which any Borrower is accepting a party shall be joint and several. Such joint and several liability of each Borrower shall to the fullest extent permitted by law remain and exist regardless of whether a Borrower actually receives loans or other extensions of credit hereunder or the amount of such loans received or the manner in consideration which Lenders account for such loans or other extensions of credit on its books and records. Each Borrower’s Obligations with respect to loans made to it and related fees, costs and expenses, and each Borrower’s Obligations arising as a result of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for of the obligations Borrowers hereunder, with respect to loans made to the other Borrowers hereunder together with the related fees, costs and expenses, shall be separate and distinct Obligations, all of which are primary Obligations of each of themBorrower. Each Borrower’s Obligations arising as a result of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with of the other Issuers Borrowers hereunder with respect to loans or other extensions of credit made to the payment and performance other Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (i) the validity, enforceability, avoidance or subordination of the Obligations arising under this Agreement and of the other Loan Documents, it being the intention Borrowers or of any promissory note or other document evidencing all of any part of the parties hereto that all Obligations of the other Borrowers, (ii) the absence of any attempt to collect the Obligations shall be from the joint and several obligations other Borrowers, any other guarantor, or any other security therefor, or the absence of each any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of the Issuers without preferences any indulgence by Administrative Agent or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment Lenders with respect to any provision of any instrument evidencing the Obligations of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrowers, or any part thereof, made in respect of or any of other agreement now or hereafter executed by the other Borrowers and delivered to the Administrative Agent or the Lenders, (iv) the failure by the Administrative Agent or the Lenders to take any steps to perfect and maintain their security interest in, or to preserve its rights to, any security or collateral for the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan DocumentsBorrowers, to (v) the extent Administrative Agent’s or any Lender’s election, in any proceeding instituted under the U.S. Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Administrative Agent’s or Lenders’ claims for repayment of the Obligations of any other Borrower under Section 502 of the Issuers Bankruptcy Code, or (viii) any other circumstance which might constitute a legal or equitable discharge or defense of a guarantor of any other Borrower, other than indefeasible payment in full of such Obligations. With respect to each Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to loans or other extensions of credit made to any other Borrower hereunder, each such Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated in accordance with its terms, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations or any other liability of a Borrower to the Administrative Agent or any Lender, whether any such right arises by way of suretyship or otherwise.
(b) Any term or provision of this Agreement or any other Loan Document to the contrary notwithstanding, the maximum aggregate amount of the Obligations for which any of the Borrowers (which Obligations are not direct borrowings or direct obligations of such Borrower (the “Non-Direct Obligations”)) shall be adjudicated liable shall not exceed the maximum amount for which such Borrower can be liable without rendering such Non-Direct Obligations, as they relate to be invalid or unenforceable for any reason (includingsuch Borrower, without limitation, because of any voidable under applicable Laws law relating to fraudulent conveyances conveyance or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Lawfraudulent transfer. To the extent that any Loan Party is deemed Borrower shall be required hereunder to be pay a surety or guarantor portion of its Non-Direct Obligations which shall exceed the greater of (i) the amount of the economic benefit actually received by such Borrower from any of the loans evidenced hereby in respect of such Non-Direct Obligations, and (ii) the amount which such Borrower would otherwise have paid if such Borrower had paid the aggregate amount of the Non-Direct Obligations of such Borrower (excluding the amount thereof repaid by the other Borrower) in the same proportion as such Borrower’s net worth at the date of any other Loan Party, each such Loan Party hereby waives and applicable borrowing hereunder is sought bears to the aggregate net worth of all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Borrowers at the date of such applicable borrowing hereunder is sought, then such Borrower shall be reimbursed by the other Borrower for the amount of such excess, pro rata based on the respective net worths of the Borrowers at the date of such applicable borrowing with respect hereto is sought.
Appears in 2 contracts
Sources: Credit Agreement (Aviv REIT, Inc.), Credit Agreement (Aviv REIT, Inc.)
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Lender under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrower to accept joint and several liability for the obligations of each of them. Obligations.
(b) Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also surety and as a co-debtor, joint and several liability with the each other Issuers Borrower, with respect to the performance of this Agreement and the payment and performance of all of the Obligations (including, without limitation, any obligations arising under this Agreement and the other Loan DocumentsSection), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations Obligation as and when due or to perform any of the Obligations Obligation in accordance with the terms thereof, then then, in each such event, the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. applicable.
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 constitute the absolute and unconditional, full recourse obligations of such Issuer, each Borrower enforceable against it each such 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 Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Advances issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, Forbearance Default or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Lender under or in respect of any Obligation, any requirement of diligence or to mitigate damages and, generally, to the 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 Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any Obligation, the acceptance of any payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Lender 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 Lender in respect of any Obligation, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any Obligation or the addition, substitution or release, in whole or in part, of any Borrower or any part of the security for any Obligation. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of 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 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its obligations under this Section, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrowers. The joint and several liability of each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, constitution or place of formation of any other Borrower or Lender.
(f) Each Borrower represents and warrants to Lender that such Borrower is currently informed of the financial condition of each other Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower hereby covenants that such Borrower will continue to keep informed of each other Borrower’s 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 Obligations.
(g) The provisions of this Section 1.4 are made for the benefit of the Purchasers Lender and their its respective successors and assigns, and may be enforced by them it from time to time against any of the Issuers or all Borrowers as often as occasion therefor may arise and without requirement on the part of Lender, or any of the Purchasers or their respective successors or assigns first to marshal any of its claims or to exercise any of its rights against the any other Issuers Borrower or to exhaust any remedies available to it against the any other Issuers 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 1.4 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lender upon the insolvency, bankruptcy or reorganization any insolvency proceeding of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(h) Each Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against any other Borrower with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Documents, any payments made by it to Lender with respect to any Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the extent prior payment in full in cash of the Obligations and, in the event of any insolvency proceeding relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower.
(i) Each Borrower hereby agrees that, after the occurrence and during the continuance of any Default, Event of Default or Forbearance Default, the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any applicable Laws relating Default, Event of Default or Forbearance Default, such Borrower will not demand, s▇▇ for or otherwise attempt to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that collect any Loan Party is deemed to be a surety or guarantor Indebtedness of any other Loan Party, each Borrower owing to such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of the Obligations)such Indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee Lender.
Appears in 2 contracts
Sources: Forbearance Agreement and Amendment to Credit Agreements (Franklin Credit Management Corp/De/), Forbearance Agreement and Amendment to Credit Agreements (Franklin Credit Management Corp/De/)
Joint and Several Liability. Each Borrowers shall be liable for all amounts due to Lender under this Agreement, regardless of which Borrower actually receives the Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which Lender accounts for such Loans, Letter of Credit Accommodations or other extensions of credit on its books and records. The Obligations with respect to Loans made to a Borrower, and the Obligations arising as a result of the Issuers is accepting joint and several liability hereunder in consideration of a Borrower hereunder, with respect to Loans made to the other Borrowers hereunder, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers. The Obligations arising as a result of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the payment and performance other Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (a) the validity or enforceability, avoidance or subordination of the Obligations arising under this Agreement and of the other Loan Documents, it being the intention Borrowers or of any promissory note or other document evidencing all or any part of the parties hereto that all Obligations of the other Borrowers, (b) the absence of any attempt to collect the Obligations shall be from the joint and several obligations other Borrowers, any Guarantor or any other security therefor, or the absence of each any other action to enforce the same, (c) the waiver, consent, extension, forbearance or granting of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment indulgence by Lender with respect to any provisions of any instrument evidencing the Obligations of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrowers, or any part thereof, made or any other agreement now or hereafter executed by the other Borrowers and delivered to Lender, (d) the failure by Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrowers, (e) the election of Lender in respect any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (f) the disallowance of all or any portion of the claim(s) of Lender for the repayment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan DocumentsBorrowers under Section 502 of the Bankruptcy Code, or (g) any other circumstances which might constitute a legal or equitable discharge or defense of a Guarantor or of the other Borrowers, other than the wilful misconduct, gross negligence or bad faith of Lender as determined pursuant to a final, non-appealable order of a court of competent jurisdiction. With respect to the extent Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrowers hereunder, each Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any of the Issuers shall be adjudicated to be invalid remedy which Lender now has or unenforceable for may hereafter have against Borrowers, any reason (including, without limitation, because of endorser or any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of all or any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full part of the Obligations), and any benefit of, and any right to participate in, any security or collateral given to Lender. Upon any Event of Default and for so long as the same is continuing, Lender may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against the other Borrowers or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Lender shall be under no obligation to mars▇▇▇▇ ▇▇▇ assets in favor of Borrower(s) or against or in payment of any or all of the Obligations.
Appears in 2 contracts
Sources: Loan and Security Agreement (Waxman Industries Inc), Loan and Security Agreement (Waxman Industries Inc)
Joint and Several Liability. (a) Each Borrower is jointly and severally liable for all of the Issuers is accepting Obligations regardless of which such Person actually receives or received (or receives or received the proceeds of) Loans, Letters of Credit and other extensions of credit hereunder or the amount of such Loans, Letters of Credit and other extensions of credit received or the manner in which the Administrative Agent, the Issuing Bank, any Lender or any other holder of Obligations accounts for such Loans, Letters of Credit and other extensions of credit on its books and records. Each Borrower’s obligations with respect to Loans, Letters of Credit and other extensions of credit made to it hereunder and each such Borrower’s obligations arising as a result of the joint and several liability hereunder in consideration of the financial accommodation such Borrower hereunder, with respect to be provided Loans, Letters of Credit and other extensions of credit made to and other Obligations owing by the Purchasers under this Agreementother Borrowers hereunder, for the mutual benefit, directly and indirectly, shall be primary obligations of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept such Borrower.
(b) The joint and several liability for the obligations of each of them. Each Borrower under clause (a) above is absolute and unconditional, irrespective of the Issuers jointly and severally hereby irrevocably and unconditionally acceptsvalue, not merely as genuineness, validity or regularity of any of the Loan Documents or any other document relating to the Obligations or the enforceability of the Loan Documents or any other document relating to the Obligations against any Person other than such Borrower or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable law, irrespective of any law or regulation or other circumstance whatsoever (other than payment of the Obligations in full) which might otherwise constitute a suretylegal or equitable discharge or defense of a surety or guarantor, but also as a co-debtor, it being the intent of this Section 2.16 that the joint and several liability with of each Borrower the other Issuers foregoing clause (a) shall be absolute and unconditional under any and all circumstances. Each Borrower agrees that with respect to its Obligations under the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or performforegoing clause (a), such Obligation. Each of the Issuers further agrees that it Borrower shall have no right of subrogation, indemnity, reimbursement or contribution against the any other Issuers Borrower for amounts so paid under this Agreement Section 2.16 until such time as the Purchasers all Loans and all other Obligations (other than indemnification and other contingent obligations not yet due) have been indefeasibly paid in full and all Obligations under this Agreement the Commitments have been expired or terminated. The obligations Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the joint and several liability of each Issuer Borrower under the provisions of this Section 1.4 constitute full recourse obligations of such Issuerforegoing clause (a), enforceable against it to the full extent of its properties which shall remain absolute and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them unconditional as described above:
(i) at any time or from time to time, without notice to any Borrower, the time against for any performance of or compliance with any of the Issuers as often as occasion therefor may arise and without requirement on Obligations shall be extended, or such performance or compliance shall be waived;
(ii) any of the part acts mentioned in any of the provisions of any of the Purchasers first to marshal any of its claims Loan Documents or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or document relating to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full be done or otherwise fully satisfied. If at omitted; provided, however, that the foregoing shall not be deemed a waiver by any time, Borrower of any payment, right to receive notice expressly granted to such Borrower under any Loan Document or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).documents;
Appears in 2 contracts
Sources: Credit Agreement (Forward Air Corp), Credit Agreement (Forward Air Corp)
Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to Borrower shall be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability liable with the each other Issuers with respect to Borrower for the payment and performance of all of the Obligations arising under this Agreement Obligations; each Borrower shall be deemed to have separately made the representations and warranties set forth herein; each Borrower shall be responsible jointly and severally with the other Borrowers for all of the indemnities set forth in any of the Loan Documents; each Borrower shall be responsible for discharging the covenants contained in each of the Loan Documents applicable to it; and each Borrower shall be deemed separately to have granted a security interest in its interest in its types and items of its property constituting Collateral. Lender shall have the right to deal with RTI with regard to all matters concerning the rights and obligations of Lender hereunder and the duties and liabilities of Borrowers hereunder. All actions or inactions of the officers, managers, members and agents of RTI with regard to the transactions contemplated under any of the Loan Documents shall be deemed to be binding upon all Borrowers hereunder. Any Advances or other Loan Documentsextensions of credit made to one Borrower shall be deemed to have been made to and for the benefit of all Borrowers, it being understood that Borrowers’ businesses are a mutual and collective enterprise and Borrowers believe that the intention consolidation of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations will enhance the aggregate borrowing powers of each Issuer under Borrower and ease the provisions administration of this Section 1.4 constitute their loan relationship with Lender, all to the mutual advantage of Borrowers. Each Borrower hereby appoints each other Borrower as its true and lawful attorney-in-fact, with full recourse obligations right and power, for purposes of exercising all rights of such Issuer, enforceable against it to the full extent of its properties appointing Borrower hereunder and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of with regard to the Obligations)transactions contemplated under the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (RTI Biologics, Inc.)
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrower to accept joint and several liability for the obligations of each of them. Obligations.
(b) Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also surety and as a co-debtor, joint and several liability with the each other Issuers Borrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Agreement and the other Loan DocumentsSection 2.11), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations Obligations of each of the Issuers Borrower without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations Obligation as and when due or to perform any of the Obligations Obligation in accordance with the terms thereof, then then, in each such event, the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all applicable.
(d) The Obligations under this Agreement have been terminated. The obligations of each Issuer Borrower under the provisions of this Section 1.4 2.11 constitute the absolute and unconditional, full recourse obligations Obligations of such Issuer, each Borrower enforceable against it each such 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 Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Advances 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 the Administrative Agent or any Lender under or in respect of any Obligation, any requirement of diligence or to mitigate damages and, generally, to the 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 Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any Obligation, the acceptance of any payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or any Lender 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 the Administrative Agent or any Lender in respect of any Obligation, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any Obligation or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of the Administrative 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 2.11 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 2.11, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrower under this Section 2.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this Section 2.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower. The joint and several liability of Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, constitution or place of formation of the other Borrowers, the Administrative Agent or any Lender.
(f) Each Borrower represents and warrants to the Administrative Agent and the Lenders that such Borrower is currently informed of the financial condition of each other Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower hereby covenants that such Borrower will continue to keep informed of each other Borrower’s financial condition, the financial condition of any Guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.
(g) The provisions of this Section 1.4 2.11 are made for the benefit of the Purchasers Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by any of them from time to time against any of the Issuers or all Borrowers as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any of the Purchasers Lender, or any or their respective successors or assigns first to marshal any of its claims or to exercise any of its rights against the any other Issuers Borrower or to exhaust any remedies available to it against the any other Issuers 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 1.4 2.11 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization any insolvency proceeding of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 2.11 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(h) Each Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against any other Borrower with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Documents, any payments made by it to the extent the Obligations of Administrative Agent or any Lender with respect to any of the Issuers shall be adjudicated to be invalid Obligations or unenforceable for any reason (including, without limitation, because collateral security therefor until such time as all of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the maximum amount that is permissible Administrative Agent or any Lender hereunder or under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan PartyDocuments are hereby expressly made subordinate and junior in right of payment, each such Loan Party hereby waives and all defenses without limitation as to suretyship and guarantee which may be available any increases in the Obligations arising hereunder or thereunder, to it under applicable law (other than the prior payment in full of the Obligations and, in the event of any insolvency proceeding relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(i) Each Borrower hereby agrees that, after the occurrence and during the continuance of any Default or Event of Default, the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations). Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, ▇▇▇ for or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and the Lenders.
Appears in 1 contract
Sources: Credit Agreement (Franklin Credit Holding Corp/De/)
Joint and Several Liability. (a) Each Borrower shall be liable for, on a joint and several basis, and hereby guarantees the timely payment by all other Borrowers of all of the Issuers Obligations, regardless of which Borrower actually may have received the proceeds of any Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which any Credit Party accounts for such Loans or other extensions of credit on its books and records, it being acknowledged and agreed that Loans to any Borrower inure to the mutual benefit of all Borrowers and that each Credit Party is accepting relying on the joint and several liability of all Borrowers in extending the Loans and other financial accommodations hereunder to Borrowers. Each Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, by acceleration or otherwise) of any principal of, or interest owed on, any of the Obligations owed by a Borrower, such Borrower shall forthwith pay the same, without notice or demand.
(b) Each Borrower’s joint and several liability hereunder with respect to, and guaranty of, the Obligations, shall, to the fullest extent permitted by Applicable Law, be unconditional irrespective of (i) the validity, enforceability, avoidance or subordination of any of such Obligations or of any promissory note or other document evidencing all or any part of such Obligations, (ii) the absence of any attempt to collect any of such Obligations from any other Obligor or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by any Credit Party with respect to any provision of any instrument evidencing or securing the payment of any of such Obligations, or any other agreement now or hereafter executed by any other Borrower and delivered to any Credit Party, (iv) the failure by Administrative Agent to take any steps to perfect or maintain the perfected status of its security interest in consideration or other Lien upon, or to preserve its rights to, any of the financial accommodation to be provided by Collateral or other security for the Purchasers payment or performance of any of such Obligations or Administrative Agent’s release of any Collateral or of its Liens upon any Collateral, (v) any Credit Party’s election, in any proceeding instituted under this Agreementthe Bankruptcy Code, for the mutual benefitapplication of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor or debtor-in-possession under any insolvency law (including Section 364 of the Bankruptcy Code), (vii) the release or compromise, in whole or in part, of the liability of any Obligor for the payment of any of such Obligations, (viii) any amendment or modification of any of the Loan Documents or any waiver of an applicable Default or an Event of Default, (ix) any increase in the amount of such Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, or any decrease in the same, (x) the disallowance of all or any portion of any Credit Party’s claims against any other Obligor for the repayment of any of such Obligations under any insolvency law (including Section 502 of the Bankruptcy Code), or (xi) to the fullest extent permitted by law, any other circumstance that might constitute a legal or equitable discharge or defense of any Obligor. After the occurrence and during the continuance of any Event of Default, Administrative Agent may proceed directly and indirectlyat once, without notice to any Obligor, against any or all of Obligors to collect and recover all or any part of the Obligations owing by Obligors (whether or not then due or payable), without first proceeding against any other Obligor or against any Collateral or other security for the payment or performance of any of such Obligations, and to the fullest extent permitted by law, each Borrower waives any provision under Applicable Law that might otherwise require Administrative Agent to pursue or exhaust its remedies against any Collateral or Obligor before pursuing another Obligor.
(c) No payment or payments made by any Obligor or received or collected by any Credit Party or any other Person by virtue of any action or proceeding or any setoff or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, release or otherwise affect the liability of any Borrower under this Agreement for any remaining Obligations, each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers whom shall remain jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to liable for the payment and performance of all of the its Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full Full Payment of the Obligations).
Appears in 1 contract
Sources: Loan and Security Agreement (Spectrum Brands, Inc.)
Joint and Several Liability. Each of the Issuers Borrower is accepting joint and several liability with the other Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Administrative Agent, the Collateral Agents, the Issuing Banks and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrowers to accept joint and several liability for the obligations Obligations of each of themBorrower. Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Agreement and the other Loan DocumentsSection 2.22), it being the intention of the parties hereto that all the Obligations of the Borrowers shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all The Obligations under this Agreement have been terminated. The obligations of each Issuer Borrower under the provisions of this Section 1.4 2.22 constitute the absolute and unconditional, full recourse obligations Obligations of such Issuer, each Borrower enforceable against it each such Borrower to the full extent of its properties and assets. The provisions , irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. Nothing contained in this Section 1.4 are made for 2.22 shall effect the benefit obligations of any Borrower or any other Loan Party under any other provision of this Agreement (including Article X hereof) or any other Loan Document.”.
87. Section 3.09 of the Purchasers Credit Agreement is hereby amended by deleting each reference to the phrase “the UK Borrower” and their successors and assigns, and may be enforced by replacing them from time to time against any with the phrase “Cott Beverages Limited”.
88. Section 3.10(c) of the Issuers as often as occasion therefor may arise and without requirement on Credit Agreement is hereby amended by deleting the part of any of phrase “Neither the Purchasers first to marshal UK Borrower nor any of its claims Subsidiaries” and replacing it with the phrase “None of the UK Co-Borrowers or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining payment of any their respective Subsidiaries”.
89. Section 3.16(c) of the Obligations hereunder or to elect any other remedyCredit Agreement is hereby amended by deleting the phrase “UK Borrower” and replacing it with the phrase “UK Co-Borrower”.
90. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any 3.19 of the Obligations Credit Agreement is rescinded or must otherwise be restored or returned by hereby deleted in its entirety and replaced with the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).following:
Appears in 1 contract
Sources: Credit Agreement (Cott Corp /Cn/)
Joint and Several Liability. (i) Each of the Issuers Loan Parties is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Administrative Agent and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Loan Parties and in consideration of the undertakings of each of the Issuers other Loan Party to accept joint and several liability for the obligations of each of them. Obligations
(ii) Each of the Issuers Loan Parties, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Loan Parties, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Agreement and the other Loan DocumentsSection 10.15), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations Obligations of each of the Issuers Loan Parties without preferences or distinction among them.
(iii) If and to the extent that any of the Issuers Loan Parties shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Loan Parties will make such payment with respect to, or perform, such Obligation. Each
(iv) The Obligations of each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer Loan Parties under the provisions of this Section 1.4 10.19 constitute full recourse obligations Obligations of such Issuer, each of the Loan Parties enforceable against it each such Loan Party to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement as against any particular Loan Party.
(v) Except as otherwise expressly provided in this Agreement, but only to the extent permitted by applicable law, each of the Loan Parties hereby waives notice of acceptance of its joint and several liability, notice of any Loans made, or Letter of Credit issued, extended or renewed under this Agreement, notice of the occurrence of any Event of Default or Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or any Lender under or in respect of any of the Obligations, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement and the other Loan Documents. Each of the Loan Parties hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or any Lender at any time or times in respect of any Event of Default or Default by any of the Loan Parties in the performance or satisfaction of any term, covenant, condition or provision of this Agreement or any of the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent or any Lender 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 of the Loan Parties. Without limiting the generality of the foregoing, but only to the extent permitted by applicable law, each of the Loan Parties assents to any other action or delay in acting or failure to act on the part of the Administrative Agent or any Lender with respect to the failure by any of the Loan Parties 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, regulations thereunder, which might, but for the provisions of this Section 10.19, afford grounds for terminating, discharging or relieving any of the Loan Parties, in whole or in part, from any of its Obligations under this Section 10.19, it being the intention of each of the Loan Parties that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Loan Parties under this Section 10.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Loan Parties under this Section 10.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any of the Loan Parties, the Administrative Agent or any Lender. The joint and several liability of the Loan Parties 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 of the Loan Parties, the Administrative Agent or any Lender.
(vi) The provisions of this Section 1.4 10.19 are made for the benefit of the Purchasers Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by any of them from time to time against any or all of the Issuers Loan Parties as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any of the Purchasers Lender first to marshal ▇▇▇▇▇▇▇▇ any of its claims or to exercise any of its rights against the any other Issuers Loan Party or to exhaust any remedies available to it against the any other Issuers Loan Party 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 1.4 10.19 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers any Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersLoan Parties, or otherwise, the provisions of this Section 1.4 10.20 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(i) Each of the Loan Parties hereby irrevocably waives, and agrees that it will not enforce, any provision of its rights of contribution or subrogation against any other Loan Party with respect to the contrary contained herein any liability incurred by such Loan Party hereunder or in under any of the other Loan Documents, any payments made by such Loan Party to the extent Administrative Agent for the Obligations accounts of the Lenders with respect to any of the Issuers Obligations or any collateral security therefor. Such waiver and agreement is for the benefit of the other Loan Parties, the Lenders and the Administrative Agent. If such waiver and agreement shall be adjudicated determined to be invalid or unenforceable by a court of competent jurisdiction, any claim which such Loan Party may have against such other Loan Party with respect to any payments to the Administrative Agent for any reason (includingthe account of the Lenders hereunder are hereby expressly made subordinate and junior in right of payment, without limitationlimitation as to any increases in the Obligations arising hereunder, because to the prior payment in full of all amounts due and owing by such other Loan Party to the Administrative Agent and the Lenders and, in the event of any applicable Laws insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each its debts or its assets, whether voluntary or involuntary, all Indebtedness of such other Loan Party owing to the Lenders (“Senior Indebtedness”) shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to such Loan Party therefor. Each Loan Party hereby waives and all defenses to suretyship and guarantee which agrees that for so long as any Obligations are outstanding hereunder the provisions of this Section 10.19(g) may be available relied on directly by any holder of Senior Indebtedness regardless of whether such holder is a party hereto.
(ii) Notwithstanding the provisions of the preceding clause (i), each of the Loan Parties shall have and be entitled to (1) all rights of subrogation otherwise provided by law in respect of any payment such Loan Party may make or be obligated to make under this Credit Agreement and (2) all claims (as defined in the Bankruptcy Code) it under applicable law would have against any of the other Loan Parties in the absence of the preceding clause (other than payment i), and to assert and enforce the same, in each case on and after, but at no time prior to , the date (the “Subrogation Trigger Date”) which is one (1) year and five (5) days after the date on which all the Obligations have been indefeasibly repaid in full if and only if (A) no Default or Event of Default of the Obligations)type described in §§13.1(g) or (h) with respect to the other Loan Parties has existed at any time on or after the Closing Date to and including the Subrogation Trigger Date and (B) the existence of the Loan Party’s rights under this clause (ii) would not make the Loan Party a creditor (as defined in the Bankruptcy Code) of the other Loan Parties in any insolvency, bankruptcy, reorganization or similar proceeding commenced on or prior to the Subrogation Trigger Date.
Appears in 1 contract
Joint and Several Liability. Each of the Issuers is accepting OHI Borrower accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by Agent and the Purchasers Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other OHI Borrowers to accept joint and several liability for the obligations of each of them. Obligations.
(a) Each of the Issuers OHI Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers OHI Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Agreement and the other Loan DocumentsSection 12.2), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers OHI Borrower without preferences or distinction among them. .
(b) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers event each OHI Borrower will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all .
(c) The Obligations under this Agreement have been terminated. The obligations of each Issuer OHI Borrower under the provisions of this Section 1.4 12.2 constitute the absolute and unconditional, full recourse obligations Obligations of such Issuer, each OHI Borrower enforceable against it each such OHI 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.
(d) Except as otherwise expressly provided in this Agreement, each OHI Borrower hereby waives 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 Agent or Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable laws, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each OHI Borrower hereby assents to, and waives notice of, 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 Agent 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 Agent 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 OHI Borrower assents to any other action or delay in acting or failure to act on the part of 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, that might, but for the provisions of this Section 12.2, afford grounds for terminating, discharging or relieving any OHI Borrower, in whole or in part, from any of its Obligations under this Section 12.2, it being the intention of each OHI Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such OHI Borrower under this Section 12.2 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each OHI Borrower under this Section 12.2 shall not be diminished or rendered unenforceable by any winding-up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or Agent or any Lender. The joint and several liability of OHI Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, constitution or place of formation of any Borrower or Agent or any Lender.
(e) Each OHI Borrower represents and warrants to Agent and Lenders that such OHI Borrower is currently informed of the financial condition of Borrowers and of all other circumstances that a diligent inquiry would reveal and that bear upon the risk of nonpayment of the Obligations. Each OHI Borrower further represents and warrants to Agent and Lenders that such OHI Borrower has read and understands the terms and conditions of the Loan Documents. Each OHI Borrower hereby covenants that such OHI 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 Obligations.
(f) The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 12 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfiedfull. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Agent or any Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersOHI Borrower, or otherwise, the provisions of this Section 1.4 12 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(g) Each OHI Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against any Borrower with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Documents, any payments made by it to the extent the Obligations of Agent or Lenders with respect to any of the Issuers shall be adjudicated to be invalid Obligations or unenforceable for any reason (including, without limitation, because collateral security therefor until such time as all of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Lawhave been paid in full in cash. To the extent Any claim that any Loan Party is deemed OHI Borrower may have against any other Borrower with respect to be a surety any payments to Agent or guarantor of Lenders hereunder or under any other Loan PartyDocuments are hereby expressly made subordinate and junior in right of payment, each such Loan Party hereby waives and all defenses without limitation as to suretyship and guarantee which may be available any increases in the Obligations arising hereunder or thereunder, to it under applicable law (other than the prior payment in full in cash of the Obligations)Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
Appears in 1 contract
Joint and Several Liability. Each Borrowers are defined collectively to include all Persons named as one of the Issuers is accepting Borrowers herein; provided, however, that any references herein to "any Borrower", "each Borrower" or similar references, shall be construed as a reference to each individual Person named as one of the Borrowers herein. Each Person so named shall be jointly and severally liable for all of the obligations of Borrowers under this Agreement. Each Borrower, individually, expressly understands, agrees and acknowledges, that the credit facilities would not be made available on the terms herein in the absence of the collective credit of all of the Persons named as the Borrowers herein, the joint and several liability hereunder in consideration of all such Persons, and the cross-collateralization of the financial accommodation collateral of all such Persons. Accordingly, each Borrower, individually acknowledges that the benefit to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration Persons named as one of the undertakings of each Borrowers as a whole constitutes reasonably equivalent value, regardless of the Issuers to accept joint and several liability for the obligations of each of them. Each amount of the Issuers jointly credit facilities actually borrowed by, advanced to, or the amount of collateral provided by, any individual Borrower. In addition, each entity named as one of the Borrowers herein hereby acknowledges and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of agrees that all of the Obligations arising under representations, warranties, covenants, obligations, conditions, agreements and other terms contained in this Agreement shall be applicable to and the other Loan Documents, it being the intention shall be binding upon and measured and enforceable individually against each Person named as one of the parties hereto that Borrowers herein as well as all such Persons when taken together. By way of illustration, but without limiting the Obligations shall be the joint and several obligations of each generality of the Issuers without preferences or distinction among them. If and foregoing, the terms of Section 10.1 of this Agreement are to the extent that any be applied to each individual Person named as one of the Issuers shall fail Borrowers herein (as well as to make any payment with respect to any of the Obligations all such Persons taken as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or performa whole), such Obligation. Each of that the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part occurrence of any of the Purchasers first events described in Section 10.1 of this Credit and Security Agreement 21 Agreement as to marshal any Person named as one of its claims or to exercise any the Borrowers herein shall constitute an Event of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort Default even if such event has not occurred as to any other source Persons named as the Borrowers or means of obtaining payment of any of the Obligations hereunder or as to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect such Persons taken as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)whole.
Appears in 1 contract
Sources: Credit and Security Agreement (Penwest Pharmaceuticals Co)
Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to Borrower shall be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably liable for all amounts due to Agent and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising Lenders under this Agreement and the other Loan DocumentsFinancing Agreements, it being regardless of which Borrower actually receives the intention Loans or Letter of Credit Accommodations hereunder or the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations amount of such Issuer, enforceable against it to Loans received or the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain manner in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, which Agent or any part thereofLender accounts for such Loans, made in respect Letter of any Credit Accommodations or other extensions of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated credit on its books and in effect as though such payment had not been maderecords. Notwithstanding any provision to the contrary contained All references herein or in any of the other Loan DocumentsFinancing Agreements to any of the obligations of Borrowers to make any payment hereunder or thereunder shall constitute joint and several obligations of Borrowers. The Obligations with respect to Loans made to a Borrower, and the Obligations arising as a result of the joint and several liability of a Borrower hereunder, with respect to Loans made to the other Borrower, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers. The Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrower shall, to the fullest extent permitted by law, be unconditional irrespective of (a) the validity or enforceability, avoidance or subordination of the Obligations of any of the Issuers shall be adjudicated to be invalid other Borrower or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances promissory note or transfers) then other document evidencing all or any part of the Obligations of such Issuer hereunder shall be limited the other Borrower, (b) the absence of any attempt to collect the maximum amount that is permissible under applicable Law. To Obligations from the extent that other Borrower, any Loan Party is deemed to be a surety Obligor or guarantor any other security therefor, or the absence of any other Loan Partyaction to enforce the same, (c) the waiver, consent, extension, forbearance or granting of any indulgence by Agent or any Lender with respect to any provisions of any instrument evidencing the Obligations of the other Borrower, or any part thereof, or any other agreement now or hereafter executed by the other Borrower and delivered to Agent or any Lender, (d) the failure by Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrower, (e) the election of Agent and Lenders in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (f) the disallowance of all or any portion of the claim(s) of Agent or any Lender for the repayment of the Obligations of the other Borrower under Section 502 of the Bankruptcy Code, or (g) any other circumstances which might constitute a legal or equitable discharge or defense of an Obligor or of the other Borrower. With respect to the Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrower hereunder, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which Agent or any Lender now has or may hereafter have against any Borrower or Obligor and any benefit of, and any right to participate in, any security or collateral given to Agent or any Lender. At any time an Event of Default exists or has occurred and is continuing, Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations), without first proceeding against the other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Agent and Lenders shall be under no obligation to marshal any assets in favor of Borrower(s) or against or in payment of any or all of the Obligations.
Appears in 1 contract
Sources: Loan and Security Agreement (Atlantic Express Transportation Corp)
Joint and Several Liability. (a) Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Agent and Lenders by each other Borrower. Although it is the express agreement and intent of Agent, Lenders and Borrowers that each Borrower is and shall be a primary obligor with respect to the Issuers is accepting joint obligations set forth herein and several liability hereunder not a guarantor, indemnitor, surety or otherwise only secondarily liable for such obligations, in consideration of the financial accommodation event and to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for extent that the obligations of each of them. Each such Borrower undertaken herein might in the future be construed to consist, in whole or in part, of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with guaranty of obligations of the other Issuers Borrower, each Borrower consents and agrees that such guaranty obligation (as the same may be construed) is and shall be a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 9.15 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 9.15 shall be absolute, unconditional and irrevocable, irrespective of, and unaffected by,
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, any Obligation or any Loan Document, agreement, document or instrument to which any Borrower is or may become a party; (ii) the absence of any action to enforce any Obligation or Loan Document or the waiver or consent by the Agent or any Lender with respect to any of the provisions governing any Obligation or Loan Document; (iii) the insolvency of any Borrower, Guarantor or other Obligor; and (iv) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(b) Each Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel the Agent or Lenders to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Borrower, Guarantor or Obligor, any other party or against any security for the payment and performance of all the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. Each Borrower consents and agrees that the Agent or the Lenders may, at any time and from time to time, without notice or demand, whether before or after an actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness hereof as to such Borrower: (i) with the consent of each Borrower, supplement, restate, modify, amend, increase, decrease, extent, renew or otherwise change the time for payment or the terms of this Agreement, any Loan Document or any part thereof, including any increase or decrease of the Obligations arising under rate(s) of interest thereon; (ii) with the consent of each Borrower, supplement, restate, modify, amend, increase, decrease, or enter into or give any agreement with respect to, this Agreement, any Loan Document or any part thereof, or any of the Security Documents; (iii) waive, approve or consent to any action, condition, covenant, default, remedy, right, representation or term of this Agreement or any other Loan Document; (iv) accept partial payments; (v) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the order or manner of sale thereof as the Agents or Lenders in their sole and absolute discretion may determine; (vi) release any person from any personal liability with respect to this Agreement or any part thereof; (vii) settle, release on terms satisfactory to the Required Lenders or by operation of applicable Legal Requirements or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (viii) consent to the merger, change or any other restructuring or termination of the corporate or partnership existence of any Borrower or any other person, and correspondingly restructure the obligations evidenced hereby, and any such merger, change, restructuring or termination shall not affect the liability of any Borrower or the continuing effectiveness hereof, or the enforceability hereof with respect to all or any part of the obligations evidenced hereby. It is agreed among each Borrower, the Agent and Lenders that the foregoing consents and waivers are of the essence of the transaction contemplated by this Agreement and the other Loan DocumentsDocuments and that, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers but for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of 9.15 and such Issuerwaivers, enforceable against it the Agent and Lenders would decline to enter into this Agreement.
(c) Each Borrower agrees that the full extent of its properties and assets. The provisions of this Section 1.4 9.15 are made for the benefit of the Purchasers Agent and the other Lenders and their successors respective successors, transferees, endorsees and assigns, and may be enforced by them from time nothing herein contained shall impair, as between any other Borrower and the Agent or the other Lenders, the obligations of such other Borrower under the Loan Documents.
(d) Notwithstanding anything to time against the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 9.15(g) of this Agreement, each Borrower hereby expressly and irrevocably waives any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor. Each Borrower acknowledges and agrees that this waiver is intended to benefit the Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section 17, and that the Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 9.15(d).
(e) If the Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Issuers as often as occasion therefor may arise and without requirement on Loan Documents, the part of Agent or any of the Purchasers first to marshal any Lender may, at its sole option, determine which of its claims remedies or to exercise rights it may pursue without affecting any of its rights against and remedies under this Section 9.15. If, in the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining payment exercise of any of its rights and remedies, the Obligations hereunder Agent or any Lender shall forfeit any of its rights or remedies, including its right to elect enter a deficiency judgment against any Borrower or any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any timePerson, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, whether because of any applicable Laws relating laws pertaining to fraudulent conveyances “election of remedies” or transfersthe like, each Borrower hereby consents to such action by the Agent or such Lender and waives any claim based upon such action, even if such action by the Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by the Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of the Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations.
(f) then Notwithstanding any provision herein contained to the Obligations contrary, each Borrower’s liability under this Section 9.15 (which liability is in any event in addition to amounts for which such Borrower is primarily liable under Article II of such Issuer hereunder this Agreement) shall be limited to an amount not to exceed as of any date of determination the maximum greater of:
(i) the net amount of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and
(ii) the amount that is permissible could be claimed by the Agent and Lenders from such Borrower under applicable Law. To the extent that any Loan Party is deemed to be a surety this Section 9.15 without rendering such claim voidable or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it avoidable under applicable law (other than payment in full Section 548 of the Obligations)Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Borrower under Section 9.15(g) of this Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Strategic Realty Trust, Inc.)
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Administrative Agent and Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrower to accept joint and several liability for the obligations of each of them. .
(b) Each of the Issuers Borrower hereby agrees such Borrower is, and each such Borrower’s successors and assigns are, jointly and severally liable for, and hereby irrevocably absolutely and unconditionally acceptsguarantees to Administrative Agent, not merely as a suretyLenders and their successors and assigns, but also as a co-debtorthe full and prompt payment (whether at stated maturity, joint and several liability with the other Issuers with respect to the payment by acceleration or otherwise) and performance of of, all of the Obligations arising indebtedness and obligations under this Agreement and the other Loan DocumentsDocuments (collectively, the “Obligations”), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 16.1 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 16.1 shall be absolute and unconditional.
(c) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations hereunder as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. .
(d) The guaranty obligations of each Issuer Borrower under the provisions of this Section 1.4 16.1 constitute full recourse obligations of such IssuerBorrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever, including the following:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document, or any other agreement, document or instrument to which any other Borrower is or may become a party;
(ii) the absence of any action to enforce this Agreement or any other Loan Document or the waiver or consent by Administrative Agent or any Lender with respect to any of the provisions thereof;
(iii) the existence, value or condition of, or failure to perfect any Lien or any security for the Obligations or any action, or the absence of any action, by Administrative Agent or any Lender in respect thereof (including the release of any such security);
(iv) the insolvency of any other Borrower;
(v) the institution of any proceeding under the Debtor Relief Laws, or any similar proceeding, by or against a Borrower or Administrative Agent’s election in any such proceeding of the application of Section 1111(b)(2) of the Federal Bankruptcy Code;
(vi) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the Federal Bankruptcy Code;
(vii) the disallowance, under Section 502 of the Federal Bankruptcy Code, of all or any portion of Administrative Agent or Lenders’ claim(s) for repayment of any of the Obligations; or
(viii) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor other than the payment and performance, in full, of the Obligations. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(e) Except as otherwise expressly provided herein, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement), or of any demand for any payment under this Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Agreement), notice of any action at any time taken or omitted by Administrative Agent or any Lender under or in respect of any of the Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Administrative Agent or any Lender 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 Administrative Agent or any Lender in respect of any of the Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of Administrative Agent or any Lender, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with legal requirements or regulations thereunder which might, but for the provisions of this Section 16.1, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 16.1, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 16.1 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 16.1 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower, Administrative Agent or any Lender. The joint and several liability of 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 Borrower, Administrative Agent or any Lender.
(f) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 16.1(j), each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that this subordination is intended to benefit Administrative Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section 16.1, and that Lenders and their successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 16.1.
(g) If Administrative Agent may, under any legal requirements, proceed to realize its benefits under any of the Loan Documents giving Administrative Agent a Lien upon any portion of the Property, either by judicial foreclosure or by non-judicial sale or enforcement, Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 16.1. If, in the exercise of any of its rights and remedies, Administrative Agent shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable legal requirements pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by Administrative Agent and waives any claim based upon such action, even if such action by Administrative Agent shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Administrative Agent. Any election of remedies that results in the denial or impairment of the right of Administrative Agent to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations.
(h) The provisions of this Section 1.4 16.1 are made for the benefit of the Purchasers Administrative Agent, Lenders and their successors and assigns, and may be enforced by them any such Person from time to time against any of the Issuers Borrowers as often as occasion therefor may arise and without requirement on the part of Administrative Agent or any of the Purchasers Lender to first to marshal any of its claims or to exercise any of its rights against any of the other Issuers Borrowers or to exhaust any remedies available to it against any of the other Issuers Borrowers 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 1.4 16.1 shall remain in effect until all the Obligations hereunder shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lenders upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 16.1 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 1 contract
Sources: Loan Agreement (Howard Hughes Corp)
Joint and Several Liability. (a) Each of the Issuers Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation to be provided by the Purchasers Administrative Agent and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of the undertakings of each of the Issuers Borrowers to accept joint and several liability for the obligations of each of them. .
(b) Each of the Issuers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-co debtor, joint and several liability with the other Issuers Borrower with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsObligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Issuers Borrowers without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder or under any Loan Document as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Issuers Borrower will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. obligation.
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 2.25 constitute the absolute, irrevocable and unconditional, full recourse obligations of such IssuerBorrower, enforceable against it 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 herein, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans made pursuant to this Agreement, notice of the occurrence of any Default or Event of Default or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders, or any of them, under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders, or any of them, 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 the Administrative Agent or the Lenders, or any of them, 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 such Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, or any of them, 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 2.25, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.25 shall not be discharged except by performance and then only to the extent of such performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any Borrower or the Administrative Agent or any Lender, or any of them. The joint and several liability of the 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 of the Borrowers or the Administrative Agent or any Lender, or any of them.
(f) The provisions of this Section 1.4 2.25 are made for the benefit of the Purchasers Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against any of the Issuers Borrowers as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any of the Purchasers Lender, successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against the other Issuers any Borrower or to exhaust any remedies available to it or them against the other Issuers 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 1.4 2.25 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 2.25 will forthwith be reinstated and in effect as though such payment had not been made. .
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Loan DocumentsDocument, to the extent the Obligations obligations of any of the Issuers Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws state or federal law relating to fraudulent conveyances or transfers) then the Obligations obligations of such Issuer Borrower hereunder shall be limited to the maximum amount that is permissible under applicable Lawlaw (whether federal or state and including, without limitation, the Bankruptcy Code of the United States and the Australian Corporations Act).
(h) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against the 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 the Administrative Agent or any Lender with respect to any of the Obligations until such time as all of the Obligations have been paid in full in cash. To Any claim which any Borrower may have against the extent that other Borrower with respect to any Loan Party is deemed payments to be a surety the Administrative Agent or guarantor of any Lender hereunder or under any other Loan PartyDocuments is hereby expressly made subordinate and junior in right of payment, each such Loan Party hereby waives and all defenses including without limitation, as to suretyship and guarantee which may be available any increases in the Obligations, to it under applicable law (other than the prior payment in full in cash of the Obligations)Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to the other Borrower therefor. Each Borrower hereby appoints the Operating Partnership to act as its agent for all purposes under this Agreement (including, without limitation, with respect to all matters related to the borrowing and repayment of Loans) and agrees that (i) the Operating Partnership may execute such documents on behalf of the Borrowers as the Operating Partnership deems appropriate in its sole discretion and the Borrowers shall be obligated by all of the terms of any such document executed on their behalf, (ii) any notice or communication delivered by the Administrative Agent or any Lender to the Operating Partnership shall be deemed delivered to each Borrower and (iii) the Administrative Agent or the Lenders may accept, and be permitted to rely on, any document, instrument or agreement executed by the Operating Partnership on behalf of the Borrowers.
Appears in 1 contract
Sources: Syndicated Facility Agreement (MPT Operating Partnership, L.P.)
Joint and Several Liability. (a) Each Borrower agrees that it is jointly and severally liable for the obligations of the Issuers other Borrowers hereunder, including with respect to the payment of principal of and interest on all Loans, the payment of amounts owing in respect of Letters of Credit and the payment of fees and indemnities and reimbursement of costs and expenses. Each Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Purchasers Administrative Agent, the Collateral Agent and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of the undertakings of each of the Issuers Borrowers to accept joint and several liability for the obligations of each of them. Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the each other Issuers Borrower, with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each all of the Issuers Borrowers without preferences or distinction among them. If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, the event each other Issuers Borrower will make such payment with respect to, or perform, such ObligationObligations. A breach hereof or Default or Event of Default hereunder as to any single Borrower shall constitute a breach, Default or Event of Default as to all the Borrowers. Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid Loans made under this Agreement until such time as Agreement, notice of the Purchasers have been indefeasibly paid in full and all Obligations occurrence of any Default or Event of Default, or of any demand for any payment under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such IssuerAgreement, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part notice of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If action at any timetime taken or omitted by the Administrative Agent, any payment, the Collateral Agent or any part thereof, made the Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, all demands, notices and other formalities of every kind in connection with this Agreement, except for any demands, notices and other formalities expressly required under the terms of this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent or the Lenders at any time or times in respect of any default (including any Default or Event of 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 the Administrative Agent, the Collateral Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of the Administrative Agent, the Collateral Agent or the Lenders, including 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 10.24, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its Obligations under this Section 10.24, it being the intention of each Borrower that, so long as any of the Obligations remain unsatisfied, the Obligations of such Borrower under this Section 10.24 shall not be discharged except by performance and then only to the extent of such performance. The joint and several liability of the 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 Borrower. With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the other Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements, and Letters of Credit or letters of credit and bank guarantees issued pursuant to Ancillary Facilities which have been, in each case, Cash Collateralized or as to which arrangements satisfactory to the L/C Issuer that issued such Letters of Credit or such Ancillary Lender that issued such letter of credit or bank guarantee shall have been made) and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender.
(b) Subject to the immediately preceding sentence, to the extent that any Borrower shall be required to pay a portion of the Obligations which shall exceed the amount of Loans or other extensions of credit received by such Borrower and all interest, costs, fees and expenses attributable to such Loans or other extensions of credit, then such Borrower shall be reimbursed by the other Borrowers for the amount of such excess. This clause is intended only to define the relative rights of Borrowers, and nothing set forth in this clause is intended or shall impair the obligations of each Borrower, jointly and severally, to pay to Administrative Agent and Lenders the Obligations as and when the same shall become due and payable in accordance with the terms hereof. Notwithstanding anything to the contrary set forth in this clause or any other provisions of this Agreement, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by each Borrower to secure such Obligations), not constitute a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower, each Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall automatically be deemed to have been amended accordingly, nunc pro tunc.
(c) Each Borrower’s obligation to pay and perform the Obligations shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of this Agreement, or any term or provision therein, as to any other Borrower, (ii) any amendment or waiver of or any consent to departure from this Agreement or any other Loan Document, in respect of any other Borrower, (iii) the application of any Loan proceeds to, or the extension of any other credit for the benefit of, any other Borrower, any other Loan Party, or any of their Subsidiaries or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 10.24, constitute a legal or equitable discharge of, or provide a right of setoff against, any Borrower’s obligations hereunder, in each case other than any payment in full of the Obligations (other than contingent indemnification obligations not yet due or owing). Each of the Borrowers further agree that (i) its obligations under this Agreement and the other Loan Documents shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any such obligations is rescinded or must otherwise be restored or returned by the Purchasers any Person upon the insolvency, bankruptcy or reorganization of, or the application of any of the IssuersDebtor Relief Laws to, or otherwiseany other Borrower, the provisions of this Section 1.4 will forthwith be reinstated and in effect all as though such payment had not been made. Notwithstanding made and (ii) it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein or Loan Documents and acknowledges that such liability is continuing in any nature and applies to all obligations of the other Borrowers under the Loan Documents, to whether existing now or in the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)future.
Appears in 1 contract
Sources: Credit Agreement (Atotech LTD)
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrowers to accept joint and several liability for the obligations of each of them. .
(b) Each of the Issuers jointly and severally Borrower hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrower with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers either Borrower shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Issuers Borrower will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. obligation.
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 2.19 constitute full recourse obligations of such IssuerBorrower, enforceable against it 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 herein, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement) or of any demand for any payment under this Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Agreement), notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the 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 the Lenders in respect of any of the Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Lenders, 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 2.19, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.19, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any Borrower or any Lender. The joint and several liability of the 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 Borrower or any Lender.
(f) The provisions of this Section 1.4 2.19 are made for the benefit of the Purchasers Administrative Agent, the L/C Issuers and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against any of the Issuers either Borrower as often as occasion therefor may arise and without requirement on the part of any of the Purchasers Lender first to marshal any of its claims or to exercise any of its rights against the other Issuers Borrower or to exhaust any remedies available to it against the other Issuers 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 1.4 2.19 shall remain in effect until all of the Obligations hereunder shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lenders upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 2.19 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or .
(g) The Borrowers hereby agree as among themselves that, in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Partyconnection with payments made hereunder, each such Loan Party hereby waives Person shall have a right of contribution from each other Borrower in accordance with applicable Laws. Such contribution rights shall be subordinate and all defenses subject in right of payment to suretyship and guarantee which may be available to it under applicable law (other than payment the Obligations until such time as the Obligations have been irrevocably paid in full and the Commitments relating thereto shall have expired or been terminated, and none of the Obligations)Borrowers shall exercise any such contribution rights until the Obligations have been irrevocably paid in full and the Commitments relating thereto shall have expired or been terminated.
Appears in 1 contract
Joint and Several Liability. (a) Each of the Issuers is accepting Borrower accepts joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Administrative Agent, the Lenders and the L/C Issuers under this AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrower to accept joint and several liability for the obligations of each of them. Borrower.
(b) Each of the Issuers Borrower shall be jointly and severally hereby irrevocably liable for the Obligations, regardless of which ▇▇▇▇▇▇▇▇ actually receives the Loans hereunder or the amount of the Obligations received or the manner in which the Administrative Agent or any Lender accounts for the Obligations on its books and unconditionally acceptsrecords. Each Borrower’s obligations with respect to Loans made to it, not merely and each Borrower’s obligations arising as a surety, but also as a co-debtor, result of the joint and several liability with the other Issuers of such Borrower hereunder, with respect to Loans or L/C Obligations made to and other Obligations owing by the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsBorrowers hereunder, it being the intention of the parties hereto that all the Obligations shall be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrower.
(c) Each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to, Letters of Credit issued on behalf of, and other Obligations owing by the Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (A) the validity or enforceability, avoidance or subordination of the obligations of each any other Borrower or of any promissory note or other document evidencing all or any part of the Issuers without preferences obligations of any other Borrower, (B) the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or distinction among them. If and any other security therefor, or the absence of any other action to enforce the extent that same, (C) the waiver, consent, extension, forbearance or granting of any of indulgence by the Issuers shall fail to make Administrative Agent or any payment Lender with respect to any provision of any instrument evidencing the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, made in respect of or any of other agreement now or hereafter executed by any other Borrower and delivered to the Obligations is rescinded Administrative Agent or must otherwise be restored or returned any Lender, (D) the failure by the Purchasers upon the insolvency, bankruptcy Administrative Agent or reorganization of any of the IssuersLender to take any steps to perfect and maintain its security interest in, or otherwiseto preserve its rights to, any security or collateral for the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor obligations of any other Loan PartyBorrower, each such Loan Party hereby waives and (E) the Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (F) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code, (G) the disallowance of all defenses to suretyship and guarantee or any portion of the Administrative Agent’s or any ▇▇▇▇▇▇’s claim(s) for the repayment of the obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (H) any other circumstances which may be available to it under applicable law might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower (other than payment in full). With respect to each Borrower’s 102
(d) Upon the occurrence and during the continuation of any Event of Default, the Administrative Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations), without first proceeding against any other Borrower or any other Person, or against any security or Collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations.
Appears in 1 contract
Sources: Credit Agreement (Utz Brands, Inc.)
Joint and Several Liability. Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible as if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of the Issuers obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is accepting both a condition precedent to the obligations of Bank hereunder and a desire of Borrowers that each Borrower execute and deliver to Bank this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement. Each Borrower shall be liable for all amounts due to Bank from any Borrower under this Agreement, regardless of which either Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans received by any Borrower or the manner in which Bank accounts for such Loans or other extensions of credit on its books and records (without limiting the foregoing, each Borrower shall be liable for the Loans made to each other Borrower). Each Borrower's obligations with respect to Loans made to it, and each Borrower's obligations arising as a result of the joint and several liability hereunder in consideration of such Borrower hereunder, with respect to Loans made to another Borrower hereunder, shall be separate and distinct obligations, but all such obligations shall be primary obligations of such Borrower. Each Borrower's obligations arising as a result of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability of such Borrower hereunder with respect to Loans or other extensions of credit made to another Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or enforceability, avoidance or subordination of the obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the obligations of any other Borrower, (ii) the absence of any attempt to collect the obligations from any other Borrower, any other guarantor, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by Bank with respect to any provision of any instrument evidencing the obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to Bank, (iv) the failure by Bank to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of each of them. Each any other Borrower, (v) Bank's election, in any proceeding instituted under the Bankruptcy Code, of the Issuers jointly and severally hereby irrevocably and unconditionally acceptsapplication of Section 1111(b)(2) of the United States Bankruptcy Code, not merely (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the United States Bankruptcy Code, (vii) the disallowance of all or any portion of Bank's claim for the repayment of the obligations of any other Borrower under Section 502 of the United States Bankruptcy Code, or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to each Borrower's obligations arising as a surety, but also as a co-debtor, result of the joint and several liability with the other Issuers of such Borrower hereunder with respect to Loans or other extensions of credit made to any Borrower hereunder, such Borrower waives, until the obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which Bank now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the obligations, and any benefit of, and any right to participate in, any security or collateral given to Bank to secure payment of the obligations or any other liability of any other Borrower to Bank. Each Borrower agrees if such Borrower's joint and performance several liability hereunder, or if any Liens securing such joint and several liability, would, but for the application of this sentence, be unenforceable under applicable law, such joint and several liability and each such Lien shall be valid and enforceable to the maximum extent that would not cause such joint and several liability or such Lien to be unenforceable under applicable law, and such joint and several liability and such Lien shall be deemed to have been automatically amended accordingly at all relevant times. Upon the occurrence and during the continuance of any Event of Default, Bank may proceed directly and at once, without notice, against a Borrower to collect and recover the full amount, or any portion of the obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the obligations. Each Borrower consents and agrees that Bank shall be under no obligation to marshal any assets in favor of such Borrower or against or in payment of any or all of the obligations. Borrowers are obligated to repay the obligations as joint and several obligors under this Agreement. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations constituting Loans made to another Borrower hereunder or other obligations incurred directly and primarily by any other Borrower (an "Accommodation Payment"), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and, be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower's "Allocable Amount" (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the Obligations arising Borrowers. As of any date of determination, the "Allocable Amount" of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (i) rendering such Borrower "insolvent" within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act ("UFTA") or Section 2 of the Uniform Fraudulent Conveyance Act ("UFCA"), (ii) leaving such Borrower with unreasonably small capital or assets, within the meaning of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code, Section 4 of the UFTA, or (iii) leaving such Borrower unable to pay its debts as they become due within the meaning of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification and reimbursement under this Agreement and Section shall be subordinate in right of payment to the other Loan Documents, it being the intention prior payment in full of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assetsobligations. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documentsshall, to the extent the Obligations of expressly inconsistent with any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that provision in any Loan Party is deemed to be a surety or guarantor of any other Loan PartyDocument, each supersede such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)inconsistent provision.
Appears in 1 contract
Sources: Credit and Security Agreement (Trans Industries Inc)
Joint and Several Liability. (a) Each Borrower expressly represents and acknowledges that it is part of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability common enterprise with the other Issuers Borrowers and that any financial accommodations by Lender to any other Borrower hereunder and under the other Financing Agreements are and will be of direct and indirect interest, benefit and advantage to all Borrowers. Each Borrower acknowledges that any notice given by Lender to any other Borrower shall be effective with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations Borrowers. Each Borrower shall be the joint entitled to subrogation and several obligations of each of the Issuers without preferences or distinction among them. If contribution rights from and against any other Borrower to the extent that such Borrower is required to pay to Lender any amount in excess of the Issuers Loans hereunder used directly by such Borrower or as otherwise available under applicable law; provided, however, that such subrogation and contribution rights are and shall fail -------- ------- be subject to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each and conditions of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets2.4(b) hereof. The provisions of this Section 1.4 are made 2.4(a) shall in no way limit the obligations and liabilities of any Borrower and each Borrower shall remain liable to Lender for the benefit full amount of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to Obligations.
(b) No Borrower will exercise any rights which it may acquire by way of its rights against the other Issuers subrogation hereunder or to exhaust any remedies available to it against the other Issuers or to resort to under any other source Financing Agreement or means at law by any payment made hereunder or otherwise, nor shall any Borrower seek or be entitled to seek any contribution or reimbursement from any other Borrower in respect of obtaining payment of payments made by such Borrower hereunder or under any other Financing Agreements, until all amounts owing to Lender on account of the Obligations are paid in full and Lender's commitments hereunder are terminated. If any amounts shall be paid to any Borrower on account of such subrogation or to elect contribution rights at any other remedy. The provisions time when all of this Section 1.4 shall remain in effect until all the Obligations shall not have been indefeasibly paid in full or otherwise fully satisfied. If at any timefull, any paymentsuch amount shall be held by such Borrower in trust for Lender, or any part thereofsegregated from other funds of such Borrower, made and shall, forthwith upon receipt by such Borrower, be turned over to Lender in respect of any of the Obligations is rescinded or must otherwise be restored or returned exact form received by the Purchasers upon the insolvencysuch Borrower (duly endorsed by such Borrower to Lender, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documentsif required), to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of applied against the Obligations), whether matured or unmatured, as provided for herein.
Appears in 1 contract
Joint and Several Liability. All obligations of GTR and GTDT under this Agreement, the Term Note and any other instrument, agreement or document delivered to Bank by either of GTR and GTDT shall be (a) joint and several and (b) the primary obligation of each of GTR and GTDT All references to the term "Borrower" herein shall refer to each of GTR and GTDT separately and to both of them jointly as the context requires and each of GTR and GTDT shall be bound both severally and jointly with the other. The indebtedness hereunder shall include all debts, liabilities and obligations owed to Bank by either of GTR and GTDT solely or by both of them jointly or jointly and severally. Each of the Issuers is accepting GTR and GTDT acknowledges and agrees that its joint and several liability on the indebtedness hereunder is absolute and unconditional and shall not in consideration any manner be affected or impaired by any acts or omissions whatsoever by Bank, and without limiting the generality of the financial accommodation to be provided by foregoing, the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each GTR and GTDT on such indebtedness shall not be impaired by any acceptance by Bank of any other security for or guarantors upon the indebtedness hereunder or by any failure, neglect or omission on Bank's part to resort to any one or both of GTR's and GTDT's payment of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, indebtedness hereunder or to realize upon or protect any collateral security therefor. The joint and several liability with of each of GTR and GTDT on the other Issuers with respect to indebtedness hereunder shall not in any manner be impaired or affected by who received or used the payment and performance of all proceeds of the Obligations arising under this Agreement Term Loan or for what purposes such credits and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the financial accommodations were used. Such joint and several obligations liability of each of GTR and GTDT shall also not be impaired or affected by (and Bank, without notice to any person or entity, is hereby authorized to make from time to time) any sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in, modification or disposition of any collateral security for the Issuers without preferences indebtedness hereunder or distinction among themof any guaranty thereof. If In order to enforce payment of the indebtedness hereunder, foreclose or otherwise realize on any collateral security for the indebtedness hereunder, or exercise any other rights granted hereunder or under any other instrument, agreement or document delivered to Bank by either of GTR and GTDT or under applicable law, Bank shall be under no obligation at any time to first resort to any collateral security for the extent that indebtedness hereunder, any liens, any security interests or any other property, rights or remedies whatsoever, and Bank shall have the right to enforce such indebtedness irrespective of 4814-2699-5207/14 whether or not other proceedings or steps are pending, seeking resort to or realization upon or from any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligationforegoing. Each of the Issuers further GTR and GTDT hereby agrees that it shall have no not to exercise or enforce any right of subrogationexoneration, indemnitycontribution, reimbursement reimbursement, recourse, or contribution against the other Issuers for amounts so paid under this Agreement until subrogation available to such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time entity against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims other person or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining entity liable for payment of any of the Obligations indebtedness hereunder, or as to any security therefor, unless and until the indebtedness hereunder has been paid and satisfied in full, release by Bank of its security interest in the collateral pledged as security for the indebtedness hereunder and termination of this credit facility. Each of GTR and GTDT hereby waives any benefit of or right to participate in any of any collateral or proceeds thereof or any other security now or hereafter held by Bank. Each of GTR and GTDT hereby waives any right to require Bank to proceed against GTR, GTDT or any other person or entity, to marshal assets or proceed against or exhaust any security from GTR, GTDT or any other person or entity, to perform any obligation of GTR or GTDT respect to any collateral or proceeds thereof, and to make any presentment or demand, or give any notice of nonpayment or nonperformance, protest, notice of protest or notice of dishonor hereunder or in connection with any collateral or proceeds thereof. Each of GTR and GTDT further waives any right to elect direct the application of payments or security for any indebtedness hereunder or indebtedness of customers of GTR or GTDT. By its acceptance below, each of GTR and GTDT hereby expressly waives and surrenders any defense to its joint and several liability on the indebtedness hereunder based upon any of the foregoing. All property included in the collateral pledged as security for the indebtedness hereunder shall be included as collateral, whether it is owned jointly by one or both of GTR and GTDT or is owned in whole or in part by one (or both) of them. Notwithstanding anything herein to the contrary, the right of recovery against each of GTR and GTDT under this Agreement shall not exceed $1.00 less than the lowest amount which would render such entity's obligation under this Agreement void or voidable under applicable law, including without limitation, fraudulent conveyance law. Notices from Bank sent to either of GTR or GTDT shall constitute notice to both. Directions, instructions, actions, representations, warranties or covenants made by either of GTR and GTDT to Bank shall be binding on both and Bank shall be entitled to conclusively presume that any action by any of GTR or GTDT hereunder or under any other remedyinstrument, agreement or document delivered to Bank by any of GTR and GTDT is taken on behalf of both of them, as the case may be, whether or not such entity so indicates. The provisions word "indebtedness" is used in 0, this 0 and 0 in its most comprehensive sense and includes any and all advances, debts, obligations and liabilities of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereofof them, made in respect of heretofore, now or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, including under any of the Obligations is rescinded swap, derivative, foreign exchange, hedge, deposit, treasury management or must otherwise other similar transaction or arrangement, and whether Borrower may be restored liable individually or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuersjointly with others, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though whether recovery upon such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which indebtedness may be available to it under applicable law (other than payment in full of the Obligations)or hereafter becomes unenforceable.
Appears in 1 contract
Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation Subject to Section 2.5(b) hereof, all Borrowers shall be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably liable for all amounts due to Agent and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising Lenders under this Agreement and the other Loan DocumentsFinancing Agreements, it being regardless of which Borrower actually receives the intention Revolving Loans or Letter of Credit Accommodations hereunder or the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations amount of such Issuer, enforceable against it to Revolving Loans received or the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain manner in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, which Agent or any part thereofLender accounts for such Revolving Loans, made in respect Letter of any Credit Accommodations or other extensions of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvencycredit on its books and records. Subject to Section 2.5(b) hereof, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained all references herein or in any of the other Loan DocumentsFinancing Agreements to any of the obligation of Borrowers to make any payment hereunder or thereunder shall constitute joint and several obligations of Borrowers. The Obligations with respect to Revolving Loans made to a Borrower, and the Obligations arising as a result of the joint and several liability of a Borrower hereunder, with respect to Revolving Loans made to the other Borrowers, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers. Subject to Section 2.5(b) hereof, the Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Revolving Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrowers shall, to the fullest extent permitted by law, be unconditional irrespective of (a) the validity or enforceability, avoidance or subordination of the Obligations of any of the Issuers shall be adjudicated to be invalid other Borrowers or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances promissory note or transfers) then other document evidencing all or any part of the Obligations of such Issuer hereunder shall be limited the other Borrowers, (b) the absence of any attempt to collect the maximum amount that is permissible under applicable Law. To Obligations from the extent that other Borrowers, any Loan Party is deemed to be a surety Guarantor or guarantor any other security therefor, or the absence of any other Loan Partyaction to enforce the same, (c) the waiver, consent, extension, forbearance or granting of any indulgence by Agent or any Lender with respect to any provisions of any instrument evidencing the Obligations of the other Borrowers, or any part thereof, or any other agreement now or hereafter executed by the other Borrowers and delivered to Agent or any Lender, (d) the failure by Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrowers, (e) the election of Agent and Lenders in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111 (b)(2) of the Bankruptcy Code, (f) the disallowance of all or any portion of the claim(s) of Agent or any Lender for the repayment of the Obligations of the other Borrowers under Section 502 of the Bankruptcy Code, or (g) any other circumstances which might constitute a legal or equitable discharge or defense of a Guarantor or of the other Borrowers other than the gross negligence or wilful misconduct of Agent or a Lender as determined pursuant to a final non-appealable order of a court of competent jurisdiction. With respect to the Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Revolving Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrowers hereunder, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which Agent or any Lender now has or may hereafter have against any Borrower or Guarantor and any benefit of, and any right to participate in, any security or collateral given to Agent or any Lender. Upon any Event of Default, and for so long as such Event of Default is continuing, Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations), without first proceeding against the other Borrowers or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Agent and Lenders shall be under no obligation to ▇▇▇▇▇▇▇▇ any assets in favor of Borrower(s) or against or in payment of any or all of the Obligations.
Appears in 1 contract
Joint and Several Liability. Each Borrowers are defined collectively to include all Persons named as one of the Issuers is accepting Borrowers herein; provided, however, that any references herein to "any Borrower", "each Borrower" or similar references, shall be construed as a reference to each individual Person named as one of the Borrowers herein. Each Person so named shall be jointly and severally liable for all of the obligations of Borrowers under this Agreement. Each Borrower, individually, expressly understands, agrees and acknowledges, that the credit facilities would not be made available on the terms herein in the absence of the collective credit of all of the Persons named as the Borrowers herein, the joint and several liability hereunder in consideration of all such Persons, and the cross-collateralization of the financial accommodation collateral of all such Persons. Accordingly, each Borrower, individually acknowledges that the benefit to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration Persons named as one of the undertakings of each Borrowers as a whole constitutes reasonably equivalent value, regardless Credit and Security Agreement 28 of the Issuers to accept joint and several liability for the obligations of each of them. Each amount of the Issuers jointly credit facilities actually borrowed by, advanced to, or the amount of collateral provided by, any individual Borrower. In addition, each entity named as one of the Borrowers herein hereby acknowledges and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of agrees that all of the Obligations arising under representations, warranties, covenants, obligations, conditions, agreements and other terms contained in this Agreement shall be applicable to and the other Loan Documents, it being the intention shall be binding upon and measured and enforceable individually against each Person named as one of the parties hereto that Borrowers herein as well as all such Persons when taken together. By way of illustration, but without limiting the Obligations shall be the joint and several obligations of each generality of the Issuers without preferences or distinction among them. If and foregoing, the terms of Section 10.1 of this Agreement are to the extent that any be applied to each individual Person named as one of the Issuers shall fail Borrowers herein (as well as to make any payment with respect to any of the Obligations all such Persons taken as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or performa whole), such Obligation. Each of that the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part occurrence of any of the Purchasers first events described in Section 10.1 of this Agreement as to marshal any Person named as one of its claims or to exercise any the Borrowers herein shall constitute an Event of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort Default even if such event has not occurred as to any other source Persons named as the Borrowers or means of obtaining payment of any of the Obligations hereunder or as to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect such Persons taken as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)whole.
Appears in 1 contract
Joint and Several Liability. (a) Each Borrower shall be liable for all amounts due to the Agent and/or any Lender under this Agreement, regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which the Agent and/or such Lender accounts for such Loans or other extensions of credit on its books and records and regardless of any reference herein to any particular Borrower agreeing to make any payment to the Agent or any Lender. Each Borrower's Obligations with respect to Loans made to it, and each Borrower's Obligations arising as a result of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation Borrowers hereunder with respect to Loans made to the other Borrowers hereunder, shall be provided by the Purchasers under this Agreementseparate and distinct obligations, for the mutual benefit, directly and indirectly, but all such Obligations shall be primary obligations of each Borrower.
(b) All representations and warranties, all covenants and all obligations made or incurred by any Borrower hereunder shall be deemed to have been made or incurred jointly and severally by all of the Issuers and in consideration Borrowers. Without limiting the foregoing, each Borrower's Obligations arising as a result of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers Borrowers hereunder with respect to Loans or other extensions of credit made to the payment and performance other Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (i) the validity or enforceability, avoidance or subordination of the Obligations arising under this Agreement and of the other Loan Documents, it being the intention Borrowers or of any promissory note or other document evidencing all or any part of the parties hereto that all Obligations of the other Borrowers, (ii) the absence of any attempt to collect the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that from any of the Issuers shall fail other Borrowers, any other guarantor, or any other security therefor, or the absence of any other action to make enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any payment indulgence by the Agent and/or any Lender with respect to any provision of any instrument evidencing the Obligations of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrowers, or any part thereof, made or any other agreement now or hereafter executed by the other Borrowers and delivered to the Agent and/or any Lender, (iv) the failure by the Agent and/or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of the other Borrowers, (v) the Agent's and/or any Lender's election, in respect any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by the other Borrowers, as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Agent's and/or any Lender's claim(s) for the repayment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuersother Borrowers under Section 502 of the Bankruptcy Code, or otherwise, (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of such or any other Borrower. With respect to each Borrower's Obligations arising as a result of the provisions joint and several liability of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision the Borrowers hereunder with respect to the contrary contained herein Loans or in other extensions of credit made to any of the other Loan DocumentsBorrowers hereunder, to the extent each Borrower waives, until the Obligations shall have been paid in full and the Loan Agreement shall have been terminated, any right to enforce any right of subrogation or any of remedy which the Issuers shall be adjudicated to be invalid Agent and/or any Lender now has or unenforceable for may hereafter have against any reason (includingBorrower, without limitation, because of any applicable Laws relating to fraudulent conveyances endorser or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of all or any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full part of the Obligations), and any benefit of, and any right to participate in, any security or collateral given to the Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to the Agent and/or any Lender.
(c) Upon any Event of Default, the Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Agent shall be under no obligation to marshal any assets in favor of such Borrower or against or in payment of any or all of the Obligations. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
Appears in 1 contract
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Credit Parties under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrowers to accept joint and several liability for the obligations of each of them. Obligations.
(b) Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Agreement and the other Loan DocumentsSection 2.20), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. Accordingly, each Borrower hereby waives any and all suretyship defenses that would otherwise be available to such Borrower under applicable law.
(c) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations as and when due due, whether upon maturity, acceleration, or otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement Obligations until such time as all of the Purchasers have been indefeasibly Obligations are paid in full full, and all without the need for demand, protest, or any other notice or formality.
(d) The Obligations under this Agreement have been terminated. The obligations of each Issuer Borrower under the provisions of this Section 1.4 2.20 constitute the absolute and unconditional, full recourse obligations Obligations of such Issuer, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement (other than this Section 2.20(d)) or any other circumstances whatsoever.
(e) Without limiting the generality of the foregoing and except as otherwise expressly provided in this Agreement, each Borrower hereby waives presentments, demands for performance, protests and notices, including notices of acceptance of its joint and several liability, notice of any portion of the Credit Extensions made under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Credit Parties under or in respect of any of the Obligations, any right to proceed against any other Borrower or any other Person, to proceed against or exhaust any security held from any other Borrower or any other Person, to protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Borrower, any other Person, or any collateral, to pursue any other remedy in any Credit Party’s power whatsoever, any requirement of diligence or to mitigate damages and, generally, to the 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), any right to assert against any Credit Party, any defense (legal or equitable) (other than performance), set-off, counterclaim, or claim which each Borrower may now or at any time hereafter have against any other Borrower or any other party liable to any Credit Party, any defense (other than performance), set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any security therefor, and any right or defense arising by reason of any claim or defense based upon an election of remedies by any Credit Party including any defense based upon an impairment or elimination of such Borrower’s rights of subrogation, reimbursement, contribution, or indemnity of such Borrower against any other Borrower. Without limiting the generality of the foregoing, each Borrower hereby assents to, and waives notice of, 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 any Credit Party 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 any Credit Party 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 Borrower assents to any other action or delay in acting or failure to act on the part of any Credit Party with respect to the failure by any Borrower to comply with any of its respective Obligations, including 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 2.20 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 2.20, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Borrower under this Section 2.20 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this Section 2.20 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Borrower or any Credit Party. Each Borrower waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Borrower or other circumstance which operates to toll any statute of limitations as to any Borrower shall operate to toll the statute of limitations as to each Borrower. Each Borrower waives any defense based on or arising out of any defense of any Borrower or any other Person, other than payment of the Obligations to the extent of such payment, based on or arising out of the disability of any Borrower or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower other than payment of the Obligations to the extent of such payment. The Administrative Agent may, at the election of the Required Lenders, foreclose upon any Collateral held by Administrative Agent by one or more judicial or non-judicial sales or other dispositions, whether or not every aspect of any such sale is commercially reasonable or otherwise fails to comply with applicable law or may exercise any other right or remedy Administrative Agent or any other Credit Party may have against any Borrower or any other Person, or any security, in each case, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent the Obligations have been paid.
(f) Each Borrower represents and warrants to the Credit Parties that such Borrower is currently informed of the financial condition of the other Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Credit Parties that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of each other Borrower’s financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.
(g) The provisions of this Section 1.4 2.20 are made for the benefit of the Purchasers each Credit Party and their its successors and assigns, and may be enforced by it or them from time to time against any of the Issuers or all Borrowers as often as occasion therefor may arise and without requirement on the part of any Credit Party of the Purchasers any of its successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against the other Issuers any Borrower or to exhaust any remedies available to it or them against the other Issuers 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 1.4 2.20 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfiedoccurrence of the Termination Date. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers any Credit Party upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 2.20 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(h) Each Borrower hereby agrees that it will not enforce any of its rights that arise from the existence, payment, performance or enforcement of the provisions of this Section 2.20, including rights of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Credit Party against any Borrower, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until the Termination Date has occurred. Any claim which any Borrower may have against any other Borrower with respect to any payments to any Credit Party hereunder are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and occurrence of the Termination Date and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash and the Termination Date shall occur before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of the Secured Parties, and shall forthwith be paid to Administrative Agent to be credited and applied to the Obligations and all other amounts payable under this Agreement, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other amounts payable under this Agreement thereafter arising. Notwithstanding any provision anything to the contrary contained herein in this Agreement, no Borrower may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the other Loan DocumentsObligations and the occurrence of the Termination Date, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to this Agreement or otherwise.
(i) Each Borrower hereby acknowledges and affirms that it understands that to the extent the Obligations are secured by Real Property located in California, such Borrower shall be liable for the full amount of the liability hereunder notwithstanding the foreclosure on such Real Property by trustee sale or any other reason impairing such Borrower’s right to proceed against any other Loan Party. In accordance with Section 2856 of the California Civil Code or any similar laws of any other applicable jurisdiction, each Borrower hereby waives until the Termination Date has occurred:
(i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to such Borrower by reason of Sections 2787 to 2855, inclusive, 2899, and 3433 of the Issuers shall be adjudicated to be invalid California Civil Code or unenforceable for any reason (including, without limitation, because similar laws of any other applicable Laws relating to fraudulent conveyances or transfersjurisdiction;
(ii) then all rights and defenses that such Borrower may have because the Obligations of are secured by Real Property located in California, meaning, among other things, that: (A) the Credit Parties may collect from such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that Borrower without first foreclosing on any real or personal property collateral pledged by any Loan Party, and (B) if Administrative Agent, on behalf of the Credit Parties, forecloses on any Real Property pledged by any Loan Party, (1) the amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (2) the Credit Parties may collect from the Loan Parties even if, by foreclosing on the Real Property, any Credit Party is deemed has destroyed or impaired any right such Borrower may have to be a surety or guarantor of collect from any other Loan Party, each it being understood that this is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by Real Property (including any rights or defenses based upon Sections 580a, 580d, or 726 of the California Code of Civil Procedure or any similar laws of any other applicable jurisdiction); and
(iii) all rights and defenses arising out of an election of remedies by the Credit Parties, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Obligations, has destroyed such Borrower’s rights of subrogation and reimbursement against any other Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full by the operation of Section 580d of the Obligations)California Code of Civil Procedure or any similar laws of any other applicable jurisdiction or otherwise.
Appears in 1 contract
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Administrative Agent and Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrowers to accept joint and several liability for the obligations of each of them. Obligations.
(b) Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Agreement and the other Loan DocumentsSection 10.26), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all .
(d) The Obligations under this Agreement have been terminated. The obligations of each Issuer Borrower under the provisions of this Section 1.4 10.26 constitute the absolute and unconditional, full recourse obligations Obligations of such Issuer, each Borrower enforceable against it each 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 Borrower hereby waives notice of acceptance of its joint and several liability, 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 the Administrative Agent or the Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the 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 Borrower hereby assents to, and waives notice of, 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 the Administrative Agent or the 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 the Administrative Agent or the 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 Borrower assents to any other action or delay in acting or failure to act on the part of the Administrative 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 10.26 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 10.26, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Borrower under this Section 10.26 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this Section 10.26 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Administrative Agent or any Lender.
(f) Each Borrower represents and warrants to Administrative Agent and the Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and the Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such 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 Obligations.
(g) Each Borrower waives all rights and defenses arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Administrative Agent’s or such Lender’s rights of subrogation and reimbursement against such Borrower.
(h) The provisions of this Section 1.4 10.26 are made for the benefit of the Purchasers Administrative Agent, Lenders and their respective successors and assigns, and may be enforced by it or them from time to time against any of the Issuers or all Loan Parties as often as occasion therefor may arise and without requirement on the part of the Administrative Agent, any of the Purchasers Lender, successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against the other Issuers any Borrower or to exhaust any remedies available to it or them against the other Issuers 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 1.4 10.26 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 10.26 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(i) Each Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against any other Borrower with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Documents, any payments made by it to the extent Administrative Agent or the Obligations of Lenders with respect to any of the Issuers Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to any Agent or Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be adjudicated to be invalid paid in full in cash before any payment or unenforceable for any reason (including, without limitation, because distribution of any applicable Laws relating to fraudulent conveyances character, whether in cash, securities or transfers) then the Obligations of such Issuer hereunder other property, shall be limited made to any other Borrower therefor.
(j) Each Borrower hereby agrees that, after the occurrence and during the continuance of any Default or Event of Default, the payment of any amounts due with respect to the maximum amount indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that is permissible under applicable Law. To after the extent that occurrence and during the continuance of any Loan Party is deemed Default or Event of Default, such Borrower will not demand, ▇▇▇ for or otherwise attempt to be a surety or guarantor collect any indebtedness of any other Loan Party, each Borrower owing to such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for Administrative Agent, and such Borrower shall deliver any such amounts to Administrative Agent for application to the ObligationsObligations in accordance with Section 2.16(b).
Appears in 1 contract
Joint and Several Liability. Each of the Issuers Borrower acknowledges that it is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of liable for all of the Obligations and as a result hereby unconditionally guaranties the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all Obligations of every kind and nature of each other Borrower to the Lender, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by the Lender. Each Borrower agrees that if this guaranty, or any Liens securing this guaranty, would, but for the application of this sentence, be unenforceable under applicable law, this guaranty and each such Lien shall be valid and enforceable to the maximum extent that would not cause this guaranty or such Lien to be unenforceable under applicable law, and this guaranty shall automatically be deemed to have been amended accordingly at all relevant times. Each Borrower hereby agrees that its obligations under this Agreement and guaranty shall be unconditional, irrespective of (a) the other Loan Documents, it being the intention validity or enforceability of the parties hereto that Obligations or any part thereof, or of any promissory note or other document evidencing all or any part of the Obligations, (b) the absence of any attempt to collect the Obligations shall be from any other Borrower or any guarantor or other action to enforce the joint and several obligations of each of same, (c) the Issuers without preferences waiver or distinction among them. If and to consent by the extent that Lender or any of the Issuers shall fail to make any payment other Person with respect to any provision of any agreement, instrument or document evidencing or securing all or any part of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect toObligations, or performany other agreement, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement instrument or contribution against the document now or hereafter executed by any other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full Borrower and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it delivered to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims Lender or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source Person (other than a waiver, forgiveness or means of obtaining payment consent by the Lender or other Person, as applicable, that reduces the amount of any of the Obligations hereunder to such Person), (d) the failure by the Lender or any other Person to take any steps to perfect and maintain its security interest in, or to elect preserve its rights to, any security or Collateral for the Obligations, for its benefit, (e) the Lender’s election, in any proceeding instituted under the Bankruptcy Code or any other remedy. The provisions similar bankruptcy or insolvency legislation, of this the application of Section 1.4 shall remain in effect until all 1111(b)(2) of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, Bankruptcy Code or any part thereofother similar bankruptcy or insolvency legislation, made in respect (f) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (g) the disallowance, under Section 502 of the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of all or any portion of the Lender’s claim(s) for repayment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfersh) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee circumstance which may be available to it under applicable law might otherwise constitute a legal or equitable discharge or defense of a Borrower or a guarantor (other than payment in full of the Obligations). Notwithstanding anything to the contrary set forth in this Section 11.16, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by each Borrower to secure such Obligations), not constitute a fraudulent conveyance under Section 548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower and the Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall automatically be deemed to have been amended accordingly.
Appears in 1 contract
Joint and Several Liability. (A) Borrowers make up a related organization of various entities constituting a single economic and business enterprise so that Borrowers share an identity of interests such that any benefit received by any one of them benefits the others. Each Borrower renders services to or for the benefit each other Borrower, purchases or sells and supplies goods and/or services to or from or for the benefit of each other Borrower, make loans, advances and provides other financial accommodations to or for the benefit of each other Borrower and provides administrative, marketing, payroll and management services to or for the benefit of each other Borrower. Each Borrower has the same chief executive office, certain centralized accounting and legal services, certain common officers and directors and generally does not provide consolidating financial statements to creditors.
(B) Each Borrower acknowledges that it will enjoy significant benefits from the business conducted by the other Borrowers (regardless of whether or not such Borrower actually receives any of the proceeds of the Advances) because of, inter alia, their combined ability to bargain with other Persons including without limitation their ability to receive the credit facility on favorable terms granted by this Agreement and other Loan Documents which would not have been available to an individual Borrower acting alone. Each Borrower has determined that it is in its best interest to procure the credit facility which each Borrower may utilize directly and which received the credit support of the other Borrowers as contemplated by this Agreement and the other Loan Documents.
(C) Each of the Issuers Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Purchasers Finance Parties under this Agreement, Agreement with respect to the Advances for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of the undertakings of each of the Issuers Borrowers to accept joint and several liability for the obligations Obligations of each of them. .
(D) Each of the Issuers Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrower, with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsAgreement, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of all the Issuers Borrowers without preferences or distinction among them. .
(E) If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations hereunder as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. .
(F) The obligations of each Issuer Borrower under the provisions of this Section 1.4 8.7 constitute full recourse obligations of such Issuer, Borrower enforceable against it to the full extent of its properties and assets. The provisions , irrespective of the validity, regularity or enforceability of this Section 1.4 are made for Agreement or any other circumstance whatsoever.
(G) Except as otherwise expressly provided herein or in the benefit other Loan Documents, each Borrower hereby waives notice of the Purchasers acceptance of its joint and their successors and assignsseveral liability, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part notice of any and all Advances under this Agreement, notice of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining payment occurrence of any Default or Event of the Obligations hereunder Default, or to elect of any other remedy. The provisions demand for any payment under this Agreement, notice of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If any action at any time, time taken or omitted by any payment, Finance Party under or any part thereof, made in respect of any of the Obligations is rescinded hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or must otherwise be restored or returned by postponement of the Purchasers upon time for the insolvency, bankruptcy or reorganization payment of any of the IssuersObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or otherwiseother action or acquiescence by any Finance Party 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 any Finance Party in respect of any of the Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of the Finance Parties 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 1.4 will forthwith be reinstated and 8.7, afford grounds for terminating, discharging or relieving such Borrower, in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein whole or in part, from any of its obligations under this Section 8.7, it being the intention of each Borrower that, so long as any of the other Loan DocumentsObligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 8.7 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 8.7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to the Obligations other Borrower. The joint and several liability of the 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 of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Borrower.
Appears in 1 contract
Joint and Several Liability. Each of Parent, each Subsidiary and any other Person named or identified as a Debtor under the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation Loan Documents from time to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally time hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint unconditionally: (i) agree that each is JOINTLY and several liability with SEVERALLY liable to Lender for the other Issuers with respect to the full and prompt payment and performance of all of the Obligations arising Indebtedness under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations Documents in accordance with the terms thereof, then in each such event, ; (ii) agree to fully and promptly perform all of their obligations hereunder and the other Issuers will make such payment Loan Documents with respect to, or perform, to each Loan hereunder as if such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers Loan had been made directly to it; and (iii) agree as a primary obligation to indemnify Lender on demand for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers loss incurred by Lender as often as occasion therefor may arise and without requirement on the part a result of any of the Purchasers first Indebtedness of any Debtor being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to marshal Lender or any person, the amount of its claims such loss being the amount which Lender would otherwise have been entitled to recover from any one or to exercise any more of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to Parent, Subsidiary and any other source or means Person named as a Debtor under the Loan Documents from time to time. Each Debtor hereby designates Parent as its representative and agent on its behalf for the purposes of obtaining payment of any giving instructions with respect to the disbursement of the Obligations proceeds of the Loans, selecting interest rate options, giving and receiving all other notices and consents hereunder or to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants) on behalf of Debtor under the Loan Documents. Parent hereby accepts such appointment. Lender may regard any notice or other communication pursuant to any Loan Document from Parent as a notice or communication LOAN AND SECURITY AGREEMENT – PAGE THERMO CREDIT, LLC – FLINT TELECOM GROUP, INC. from each Debtor. Each warranty, covenant, agreement and undertaking made on behalf of a Debtor by Parent shall be deemed for all purposes to have been made by each Debtor and shall be binding upon and enforceable against such Debtor to the same extent as it if the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of same had been made directly by such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Debtor.
Appears in 1 contract
Sources: Loan and Security Agreement (Flint Telecom Group Inc.)
Joint and Several Liability. Each of (a) Notwithstanding anything to the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreementcontrary contained herein, for the mutual benefit, directly and indirectly, all Liabilities of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations Borrower hereunder shall be the joint and several obligations of Borrowers.
(b) Notwithstanding any provision herein contained to the contrary, each Borrower's obligations under this Section 18 (which obligations are in any event in addition to all Liabilities in respect of Loans advanced to and Letter of Credit Obligations issued for the account of such Borrower) shall be limited to an amount not to exceed as of any date of determination the greater of:
(i) the net amount of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and
(ii) the amount that could be claimed by Agent and Lenders from such Borrower under this Section 18 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Issuers without preferences Bankruptcy Code or distinction under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among themother things, such Borrower's right of contribution and indemnification from each other Obligor under Section 35 hereof.
(c) Each Borrower assumes responsibility for keeping itself informed of the financial condition of each other Borrower, and any and all endorsers and/or guarantors of any instrument or document evidencing all or any part of such other Borrower's Liabilities and of all other circumstances bearing upon the risk of nonpayment by such other Borrowers of their Liabilities and each Borrower agrees that neither Agent nor any Lender shall have any duty to advise such Borrower of information known to Agent or any Lender regarding such condition or any such circumstances or to undertake any investigation not a part of its regular business routine. If Agent or any Lender, in its sole discretion, undertakes at any time or from time to time to provide any such information to a Borrower, neither Agent nor any Lender shall be under any obligation to update any such information or to provide any such information to such Borrower on any subsequent occasion.
(d) Agent and Lenders are hereby authorized, without notice or demand and without affecting the liability of any other Borrower hereunder, to, at any time and from time to time, (i) renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to any Borrower's Liabilities (to the extent that permitted by this Agreement or any Other Agreement) or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument now or hereafter executed by any Borrower and delivered to Agent (to the extent permitted by this Agreement or any Other Agreement); (ii) accept partial payments on any Borrower's Liabilities; (iii) take and hold security or collateral for the payment of any Borrower's Liabilities hereunder or for the payment of any guaranties of any Borrower's Liabilities or other liabilities of any Borrower and exchange, enforce, waive and release any such security or collateral; (iv) apply such security or collateral and direct the order or manner of sale thereof as Agent, in its sole discretion, may determine; and (v) settle, release, compromise, collect or otherwise liquidate any Borrower's Liabilities and any security or collateral therefor in any manner, without affecting or impairing the obligations of the other Borrowers. Agent shall have the exclusive right to determine the time and manner of application of any payments or credits, whether received from a Borrower or any other source, and such determination shall be binding on such Borrower. All such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of a Borrower's Liabilities as Agent shall determine in its sole discretion without affecting the Issuers validity or enforceability of the Liabilities of the other Borrowers.
(e) Each Borrower hereby agrees that, except as hereinafter provided, its obligations hereunder shall fail be unconditional, irrespective of (i) the absence of any attempt to make collect a Borrower's Liabilities from any payment Borrower or any guarantor or other action to enforce the same; (ii) the waiver or consent by Agent or any Lender with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part provision of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentinstrument evidencing Borrowers' Liabilities, or any part thereof, made or any other agreement heretofore, now or hereafter executed by a Borrower and delivered to Agent or any Lender; (iii) failure by Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for Borrowers' Liabilities; (iv) the institution of any proceeding under the Bankruptcy Code, or any similar proceeding, by or against a Borrower or Agent's election in respect any such proceeding of the application of Section 1111(b)(2) of the Bankruptcy Code; (v) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code; (vi) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of Agent's or any Lender's claim(s) for repayment of any of Borrowers' Liabilities; or (vii) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(f) No payment made by or for the Obligations is rescinded account of a Borrower including, without limitations, (i) a payment made by such Borrower on behalf of another Borrower's Liabilities or must otherwise be restored or returned (ii) a payment made by the Purchasers upon the insolvencyany other person under any guaranty, bankruptcy or reorganization of any of the Issuersshall entitle such Borrower, by subrogation or otherwise, the provisions to any payment from such other Borrower or from or out of this Section 1.4 will forthwith be reinstated such other Borrower's property and in effect as though such payment had Borrower shall not been made. Notwithstanding exercise any provision to the contrary contained herein right or in remedy against such other Borrower or any property of the such other Loan Documents, to the extent the Obligations Borrower by reason of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations performance of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor Borrower of any other Loan Party, each such Loan Party hereby waives its joint and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)several obligations hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (Poindexter J B & Co Inc)
Joint and Several Liability. Each (a) Notwithstanding any provision to the contrary in any Loan Document, all Obligations of the Issuers is accepting Borrowers under this Agreement are joint and several liability hereunder Obligations of the Borrowers in consideration of the financial accommodation accommodations to be provided by the Purchasers Administrative Agent and Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrowers to accept joint and several liability for the obligations of each of themObligations. Each of the Issuers jointly and severally Borrower, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrowers, with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. Obligations.
(b) The provisions of this Section 1.4 2.2(b) are made for the benefit of the Purchasers and their successors Secured Parties, and assigns, and may be enforced by it or them from time to time against any of the Issuers or all Borrowers as often as occasion therefor therefore may arise and without requirement on the part of any of the Purchasers such Secured Parties first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Issuers Borrowers or to exhaust any remedies available to it or them against any of the other Issuers Borrowers 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 1.4 2.2(b) shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, payment or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Secured Party upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 2.2(b) will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(c) Each Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against the Borrowers with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Documents, any payments made by it to the extent the Obligations of any Secured Party with respect to any of the Issuers Obligations or any collateral security therefore until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to any Secured Party hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be adjudicated to be invalid paid in full in cash before any payment or unenforceable for any reason (including, without limitation, because distribution of any applicable Laws relating to fraudulent conveyances character, whether in cash, securities or transfers) then the Obligations of such Issuer hereunder other property, shall be limited made to any other Borrower therefor.
(i) Each Borrower hereby agrees that, after the occurrence and during the continuance of any Default or Event of Default, the payment of any amounts due with respect to the maximum amount Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that is permissible under applicable Law. To after the extent that occurrence and during the continuance of any Loan Party is deemed Default or Event of Default, such Borrower will not demand, s▇▇ for or otherwise attempt to be a surety or guarantor collect any indebtedness of any other Loan Party, each Borrower owing to such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower until the Obligations shall have been indefeasibly paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the ObligationsAdministrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with Section 2.8(b).
Appears in 1 contract
Sources: Term Loan Agreement (Bombay Co Inc)
Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to Obligor shall be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability liable with the each other Issuers with respect to Obligor for the payment and performance of all of the Obligations arising under this Agreement Obligations; each such Person shall be deemed to have separately made the representations and warranties set forth herein; each such Person shall be responsible jointly and severally with the other Obligors for all of the indemnities set forth in any of the Loan Documents; each such Person shall be responsible for discharging the covenants contained in each of the Loan Documents applicable to it; and each such Person shall be deemed separately to have granted a security interest in the types and items of its property constituting Collateral. Lender shall have the right to deal with any single Obligor with regard to all matters concerning the rights and obligations of Lender hereunder and the duties and liabilities of Obligors hereunder. All actions or inactions of the officers, managers, members and agents of any Obligor with regard to the transactions contemplated under any of the Loan Documents shall be deemed to be binding upon all Obligors hereunder. Any advances or other Loan Documentsextensions of credit made to one Obligor shall be deemed to have been made to and for the benefit of all Obligors, it being understood that Obligors’ businesses are a mutual and collective enterprise and Obligors believe that the intention consolidation of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations will enhance the aggregate borrowing powers of each Issuer under Obligor and ease the provisions administration of this Section 1.4 constitute their loan relationship with Lender, all to the mutual advantage of Obligors. Each Obligor hereby appoints each other Obligor as its true and lawful attorney-in-fact, with full recourse obligations right and power, for purposes of exercising all rights of such Issuer, enforceable against it to the full extent of its properties appointing Obligor hereunder and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of with regard to the Obligations)transactions contemplated under the Loan Documents.
Appears in 1 contract
Joint and Several Liability. The Borrowers shall be liable for all amounts due to the Lender under this Agreement, regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which the Lender accounts for such Loans or other extensions of credit on its books and records. Each Borrower's Obligations with respect to Loans made to it, and each Borrower's Obligations arising as a result of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation Borrowers hereunder, with respect to Loans made to the other Borrowers hereunder, shall be provided by the Purchasers under this Agreementseparate and distinct obligations, for the mutual benefit, directly and indirectly, but all such Obligations shall be primary obligations of each Borrower. Each Borrower's Obligations arising as a result of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the of such Borrower's obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers hereunder with respect to Loans or other extensions of credit made to the payment and performance other Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (i) the validity or enforceability, avoidance or subordination of the Obligations arising under this Agreement and of the other Loan Documents, it being the intention Borrowers or of any promissory note or other document evidencing all or any part of the parties hereto that all Obligations of the other Borrowers, (ii) the absence of any attempt to collect the Obligations shall be from the joint and several obligations other Borrowers, any other guarantor, or any other security therefor, or the absence of each any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment Lender with respect to any provision of any instrument evidencing the Obligations of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrowers, or any part thereof, made or any other agreement now or hereafter executed by the other Borrowers and delivered to the Lender, (iv) the failure by the Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of the other Borrowers, (v) the Lender's election, in respect any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by the other Borrowers, as debtors-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Lender's claim(s) for the repayment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuersother Borrowers under Section 502 of the Bankruptcy Code, or otherwise, (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of the provisions other Borrowers. With respect to each Borrower's Obligations arising as a result of this Section 1.4 will forthwith be reinstated the joint and in effect as though several liability of such payment had not been made. Notwithstanding any provision Borrower's obligations hereunder with respect to the contrary contained herein Loans or in other extensions of credit made to any of the other Loan DocumentsBorrower hereunder, to the extent each Borrower waives, until the Obligations shall have been paid in full and the Credit Agreement shall have been terminated, any right to enforce any right of subrogation or any of remedy which the Issuers shall be adjudicated to be invalid Lender now has or unenforceable for may hereafter have against such Borrower, any reason (including, without limitation, because of endorser or any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of all or any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full part of the Obligations), and any benefit of, and any right to participate in, any security or collateral given to the Lender to secure payment of the Obligations or any other liability of the Borrowers to the Lender. Upon any Event of Default, the Lender may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Lender shall be under no obligation to marshal any assets in favor of such Borrower or against or in payment of any or all of the Obligations.
Appears in 1 contract
Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation Subject to Section 2.5(b) hereof, all Borrowers shall be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably liable for all amounts due to Agent and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising Lenders under this Agreement and the other Loan DocumentsFinancing Agreements, it being regardless of which Borrower actually receives the intention Revolving Loans or Letter of Credit Accommodations hereunder or the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations amount of such Issuer, enforceable against it to Revolving Loans received or the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain manner in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, which Agent or any part thereofLender accounts for such Revolving Loans, made in respect Letter of any Credit Accommodations or other extensions of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvencycredit on its books and records. Subject to Section 2.5(b) hereof, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained all references herein or in any of the other Loan DocumentsFinancing Agreements to any of the obligation of Borrowers to make any payment hereunder or thereunder shall constitute joint and several obligations of Borrowers. The Obligations with respect to Revolving Loans made to a Borrower, and the Obligations arising as a result of the joint and several liability of a Borrower hereunder, with respect to Revolving Loans made to the other Borrowers, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers. Subject to Section 2.5(b) hereof, the Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Revolving Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrowers shall, to the fullest extent permitted by law, be unconditional irrespective of (a) the validity or enforceability, avoidance or subordination of the Obligations of any of the Issuers shall be adjudicated to be invalid other Borrowers or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances promissory note or transfers) then other document evidencing all or any part of the Obligations of such Issuer hereunder shall be limited the other Borrowers, (b) the absence of any attempt to collect the maximum amount that is permissible under applicable Law. To Obligations from the extent that other Borrowers, any Loan Party is deemed to be a surety Guarantor or guarantor any other security therefor, or the absence of any other Loan Partyaction to enforce the same, (c) the waiver, consent, extension, forbearance or granting of any indulgence by Agent or any Lender with respect to any provisions of any instrument evidencing the Obligations of the other Borrowers, or any part thereof, or any other agreement now or hereafter executed by the other Borrowers and delivered to Agent or any Lender, (d) the failure by Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrowers, (e) the election of Agent and Lenders in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (f) the disallowance of all or any portion of the claim(s) of Agent or any Lender for the repayment of the Obligations of the other Borrowers under Section 502 of the Bankruptcy Code, or (g) any other circumstances which might constitute a legal or equitable discharge or defense of a Guarantor or of the other Borrowers other than the gross negligence or wilful misconduct of Agent or a Lender as determined pursuant to a final non-appealable order of a court of competent jurisdiction. With respect to the Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Revolving Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrowers hereunder, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which Agent or any Lender now has or may hereafter have against any Borrower or Guarantor and any benefit of, and any right to participate in, any security or collateral given to Agent or any Lender. Upon any Event of Default, and for so long as such Event of Default is continuing, Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations), without first proceeding against the other Borrowers or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Agent and Lenders shall be under no obligation to ▇▇▇▇▇▇▇▇ any assets in favor of Borrower(s) or against or in payment of any or all of the Obligations.
Appears in 1 contract
Joint and Several Liability. (1) Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers under this AgreementBank hereunder, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Borrower.
(2) Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrower with respect to the payment and performance of all of the Obligations arising under this Agreement and obligations with respect to the other Loan DocumentsLoan, it being the intention of the parties hereto that all of the Obligations obligations with respect to the Loan shall be the joint and several obligations of each of the Issuers both Borrowers without preferences or distinction among them. .
(3) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations obligations with respect to the Loan as and when due or to perform any of the Obligations obligations with respect to the Loan in accordance with the terms thereof, then in each such event, event the other Issuers Borrower(s) will make such payment with respect to, or perform, such Obligation. Each obligations.
(4) The obligations with respect to the Loan of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against each Borrower hereunder and under the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 Loan Documents constitute full recourse obligations of such Issuer, Borrower enforceable against it to the full extent of its properties and assets. The provisions , irrespective of the validity, regularity or enforceability of this Section 1.4 are made for the benefit Agreement or any other circumstances whatsoever.
(5) Except as otherwise expressly provided in this Agreement, each Borrower hereby waives notice of the Purchasers acceptance of its joint and their successors and assignsseveral liability, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part notice of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining payment advance made under this Agreement, notice of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If action at any time, any payment, time taken or any part thereof, made omitted by Bank under or in respect of any of the Obligations is rescinded obligations with respect to the Advances, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or must otherwise be restored or returned by postponement of the Purchasers upon time for the insolvency, bankruptcy or reorganization payment of any of the Issuersobligations with respect to the Loan, the acceptance of any payment of any of the obligations with respect to the Loan, the acceptance of any partial payment thereon, any waiver, consent or otherwiseother action or acquiescence by Bank 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 Bank in respect of any of the obligations with respect to the Loan, 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 with respect to the Loan or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of Bank with respect to the failure by any Borrower to comply with any of its respective obligations with respect to the Loan, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with any applicable laws and regulations which might, but for the provisions of this Section 1.4 will forthwith be reinstated and 33, afford grounds for terminating, discharging or relieving any Borrower, in effect as though such payment had not been made. Notwithstanding whole or in part, from any provision of its obligations with respect to the contrary contained herein or in Loan, it being the intent of each Borrower that so long as any of its obligations with respect to the other Loan Documentsremain unsatisfied, the obligations with respect to the Loan of such Borrower shall not be discharged except by performance and then only to the extent of such performance. The obligations with respect to the Obligations Loan of each Borrower shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, or similar proceeding with respect to any Borrower or Bank. The joint and several liability of 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 Borrower or Bank.
(6) Each Borrower shall be jointly and severally liable for all obligations and liabilities with respect to any Advance regardless of whether it signed or was aware of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)request therefor.
Appears in 1 contract
Joint and Several Liability. CROSS-GUARANTEE
(a) Each Borrower acknowledges that all Borrowers are jointly and severally liable for all of the Issuers is accepting Obligations under the Loan Documents. Each Borrower expressly
(i) understands, agrees and acknowledges that Borrowers are all affiliated entities by common ownership, (ii) agrees to have the availability of common loans instead of separate loans, (iii) understands, agrees and acknowledges that Agent and Lenders hereby will extend such common loans on the terms herein provided, (iv) understands, agrees and acknowledges that Agent and Lenders will be lending against, and relying on a lien upon, all of the Borrowers' assets even though the proceeds of the Loans made hereunder may not be advanced directly to a particular Borrower, (v) understands, agrees and acknowledges that each Borrower will nonetheless benefit by the making of the Loans hereunder by Agent and Lenders and the availability of loans of a size greater than each could independently warrant, and (vi) understands, agrees and acknowledges that all of the representations, warranties, covenants, obligations, conditions, agreements and other terms contained in the Loan Documents shall be applicable to and binding upon each Borrower as set forth in the Loan Documents.
(b) Each Borrower hereby guarantees the prompt payment and performance in full of all Obligations. Such constitutes a guarantee of payment and not of collection. Each Borrower's obligations under this Agreement shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or enforceability, avoidance, or subordination of the Obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the Obligations of any other Borrower, (ii) the absence of any attempt to collect the Obligations from any other Borrower, any Guarantor, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance, or granting of any indulgence by the Agent and/or any Lender with respect to any provision of any instrument evidencing the Obligations of any other Borrower or Guarantor, or any part thereof, or any other agreement now or hereafter executed by any other Borrower or Guarantor and delivered to the Agent and/or any Lender, (iv) the failure by the Agent and/or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of any other Borrower or Guarantor, (v) the Agent's and/or any Lender's election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Agent's and/or any Lender's claim(s) for the repayment of the Obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to any Borrower's Obligations arising as a result of the joint and several liability hereunder in consideration of the financial accommodation Borrowers hereunder with respect to Advances or other extensions of credit made to any of the other Borrowers hereunder, such Borrower waives, until the Obligations (other than contingent obligations and indemnities that survive repayment of the Loans and termination of the Commitments) shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which the Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any Guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to the Agent and/or any Lender. During any Event of Default, the Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Agent shall be provided by under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Purchasers Obligations.
(c) Each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. To the extent that any Borrower shall, for under this Agreement as a joint and several obligor, repay any of the mutual benefit, Obligations constituting Advances made to another Borrower hereunder or other Obligations incurred directly and indirectlyprimarily by any other Borrower (an "ACCOMMODATION PAYMENT"), of then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the Issuers other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower's Allocable Amount and in consideration the denominator of which is the sum of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance Allocable Amounts of all of the Obligations arising Borrowers. As of any date of determination, the "ALLOCABLE AMOUNT" of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower "insolvent" within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act ("UFTA") or Section 2 of the Uniform Fraudulent Conveyance Act ("UFCA"), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification, and reimbursement under this Agreement and Section shall be subordinate in right of payment to the other Loan Documents, it being the intention prior payment in full of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assetsObligations. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents3.8 shall, to the extent the Obligations of expressly inconsistent with any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that provision in any Loan Party is deemed to be a surety or guarantor of any other Loan PartyDocument, each supersede such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)inconsistent provision.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Acorn Products Inc)
Joint and Several Liability. 14.1 Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrower to accept joint and several liability for the obligations of each of them. Obligations.
14.2 Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrowers, with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. .
14.3 If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the event any other Issuers Borrower will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogationIf any payment made to Agent or any Lender by any Borrower is disgorged or forced to be repaid by Agent or such Lender, indemnity, reimbursement or contribution against then the other Issuers Borrowers are jointly and severally responsible for paying any such amounts so paid under this Agreement until such time as repaid or disgorged from Agent or the Purchasers have been indefeasibly paid in full and all Lenders upon demand.
14.4 The Obligations under this Agreement have been terminated. The obligations of each Issuer Borrowers under the provisions of this Section 1.4 Article 14 constitute the full recourse obligations Obligations of such Issuer, Borrowers enforceable against it each Borrower to the full extent of its properties and assets. The provisions , irrespective of the validity, regularity or enforceability of this Section 1.4 are made for Agreement or the benefit other Loan Documents or any other circumstance whatsoever as to any other Borrower.
14.5 Except as otherwise expressly provided herein, each Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of occurrence of any Default or Event of Default (except to the Purchasers and their successors and assigns, and may extent notice is expressly required to be enforced by them from time given pursuant to time against the terms of this Agreement or any of the Issuers as often as occasion therefor may arise and without requirement on the part other Loan Documents), or of any demand for any payment under this Agreement, notice of the Purchasers first to marshal any of its claims action at any time taken or to exercise any of its rights against the other Issuers omitted by Lender or to exhaust any remedies available to it against the other Issuers under or to resort to any other source or means of obtaining payment in respect of any of the Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower acknowledges that Agent and the Lenders may proceed against any one Borrower or any portion of the Collateral without proceeding against the other Borrowers or any other portion of the Collateral, and Borrowers acknowledge that no such actions by Agent or the Lenders shall waive any rights or remedies of Agent and the Lenders against any other Borrower or any Collateral.
14.6 Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Agent or any Lender 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 and the other Loan Documents, any and all other indulgences whatsoever by ▇▇▇▇▇▇ in respect of any of the Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Each Borrower further agrees that its Obligations shall not be Loan and Security Agreement – Grove Collaborative, Inc. 55 released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which Agent or the Lenders may have against any Collateral or other means of obtaining repayment of any of the Obligations, the impairment of any collateral security securing the Obligations, including the failure to protect or preserve any rights which Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower; provided, however, that the foregoing shall in no way be deemed to create commercially unreasonable standards as to Lender’s duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason any Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any Borrower by reason of any other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. The Obligations of each Borrower hereunder shall not be diminished or rendered unenforceable by any winding up, reorganization, amalgamation, arrangement, liquidation, reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, Agent or any Lender. The joint and several liability of each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation, division or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower, Agent or any Lender. Each Borrower acknowledges and confirms that it has established its own adequate means of obtaining from each other Borrower on a continuing basis all information desired by such Borrower concerning the financial condition of each other Borrower and that each such Borrower will look to each other Borrower and not to Agent or any Lender for such Borrower to keep adequately informed of changes in each of the other Borrower’s respective financial conditions.
14.7 Each Borrower hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to elect Lender with respect to any of the Obligations or any collateral security therefore until such time as all of the Obligations (other than inchoate indemnity obligations or other obligations that expressly survive termination) have been indefeasibly satisfied. Any claim which any Borrower may have against any other remedyBorrower with respect to any payments to Agent or any Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations (other than inchoate indemnity obligations or other obligations that expressly survive termination) and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to 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. If for any reason any Borrower is deemed to be a guarantor or surety for the obligations of any other Borrower hereunder, then such Borrower waives all rights and defenses described in California Civil Code Section 2856(a), including the following: (a) rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to Borrower or by reason of California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433 and (b) any rights or defenses Borrower may have in respect of its obligations as a guarantor or other surety by reason of any election of remedies by Agent or any Lender.
14.8 Each Borrower hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for Agent and be paid over to Agent to be applied to repay the Obligations.
14.9 The provisions of this Section 1.4 Article 14 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 Article 14 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documentsand Security Agreement – Grove Collaborative, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).Inc. 56
Appears in 1 contract
Sources: Loan and Security Agreement (Grove Collaborative Holdings, Inc.)
Joint and Several Liability. Each of (A) The Borrowers are accepting the Issuers is accepting joint and several liability provided for hereunder in consideration of the financial accommodation accommodations provided and to be provided by the Purchasers Administrative Agent and Banks under this Agreement, Agreement for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of each of the undertakings of each of the Issuers Borrower herein to accept joint and several liability liability, for their mutual benefit, for the obligations of each of the other of them. Each of the Issuers .
(B) The Borrowers, jointly and severally as hereinafter described, hereby irrevocably and unconditionally acceptsaccept, not merely as a surety, surety but also as a co-debtordebtors, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising (including, without limitation, all indebtedness, liabilities and obligations under this Agreement Agreement, the Notes and the other Loan Documents), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of all the Issuers Borrowers without preferences preference or distinction among them. .
(C) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations Obligations, as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event each of the other Issuers will Borrowers will, forthwith upon demand by the Administrative Agent, make such payment with respect to, or perform, such ObligationObligations pursuant to the terms hereof.
(D) Each Borrower hereby acknowledges and consents to all provisions of this Agreement. In connection with its obligations under this Section, except to the extent that notice is expressly required by this Agreement, each Borrower hereby waives notice of acceptance of the joint and several liability contained in this Section, notice of any loan or advance to any Borrower under this Agreement, notice of the occurrence of any Default or any Event of Default or of any demand upon any Borrower for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or any Bank under or in respect of this Agreement, the Notes or any other Loan Document and, generally, all demands, notices, protests and other formalities of every kind in connection with the joint and several liability contained in this Section and the other provisions of this Agreement. In connection with its obligations under this Section, each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the indebtedness, liabilities and obligations under this Agreement, the Notes and the other Loan Documents, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or any Bank 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, the Notes or any other Loan Document, any and all other indulgences whatsoever by the Administrative Agent or any Bank 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 Person or Persons primarily or secondarily liable in respect of any of the Obligations. Each of the Issuers further agrees that it shall have no Borrowers also waives: (I) any right to require the Administrative Agent or any Bank to (A) proceed against any other Person, including any other Borrower or any Guarantor, or (B) pursue any other remedy; and (II) any defense arising by reason of subrogation(A) any disability or other defense of any Borrower, indemnityany Guarantor or any other Person, reimbursement (B) the cessation from any cause whatsoever, other than payment or contribution against performance in full, of any of the Obligations of the Borrowers, any Guarantor or any other Issuers for amounts so paid under this Agreement until such time as Person, or (C) any act or omission by the Purchasers have been indefeasibly paid Administrative Agent or any Bank which directly or indirectly results in full and all or aids the discharge of any Borrower, any Guarantor or any Obligations under this Agreement have been terminatedby operation of law or otherwise. The obligations of each Issuer Borrower under this Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower, any Guarantor, the Administrative Agent or any Bank. The joint and several liability of each Borrower in this Section shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, charter, membership, constitution or place of formation of any Borrower, any Guarantor, the Administrative Agent or any Bank. Each of the Borrowers agrees that each of the waivers set forth above are made with such Borrower’s full knowledge of their significance and consequences, and such Borrower agrees that, under the provisions circumstances, the waivers are reasonable and not contrary to public policy or law. If any of this Section 1.4 constitute full recourse obligations of said waivers are determined to be contrary to any applicable law or public policy, such Issuer, enforceable against it waivers shall be effective only to the full extent of its properties and assets. permitted by law.
(E) The provisions of this Section 1.4 2.17 are made for the benefit of the Purchasers Administrative Agent and the Banks and their respective successors and assigns, and may be enforced by them the Administrative Agent from time to time against any of the Issuers Borrowers as often as occasion therefor therefore may arise and without requirement on the part of the Administrative Agent or any of the Purchasers Bank first to marshal any of its their claims or to exercise any of its their rights against the any other Issuers Borrower or to exhaust any remedies available to it the Administrative Agent or any Bank against the other Issuers Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder indebtedness, liabilities and obligations evidenced by or arising under this Agreement, the Note and the Loan Documents or to elect any other remedy. The provisions of this Section 1.4 2.17 shall remain in effect until all the Obligations indebtedness, liabilities and obligations evidenced by or arising under this Agreement, the Notes and the Loan Documents shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations indebtedness, liabilities and obligations evidenced by or arising under this Agreement, the Notes and the Loan Documents, is rescinded or must otherwise be restored or returned by the Purchasers Administrative Agent or any Bank upon the insolvency, Administrative Agent or any bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 2.17 will forthwith be reinstated and in effect effect, as though such payment had not been made. .
(F) Notwithstanding any provision to the contrary contained herein herein, in the Notes or in any other of the other Loan Documents, to the extent the Obligations joint obligations of any of the Issuers Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws state or federal law relating to fraudulent conveyances or transfers) then the Obligations obligations of such Issuer each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable Law. To law (whether federal or state and including, without limitation, the extent federal Bankruptcy Code).
(G) Without limiting in anyway the foregoing and notwithstanding anything to the contrary contained herein or in any Letter of Credit Agreement, the Borrowers hereby acknowledge and agree that any Loan Party is they shall be obligated, jointly and severally, to reimburse the applicable Issuing Bank upon each Letter of Credit Advance and it shall be deemed to be a surety or guarantor obligated in respect of each such Letter of Credit issued hereunder (whether the account party on such letter of credit is any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the ObligationsBorrower or Guarantor).
Appears in 1 contract
Joint and Several Liability. Each of ESystems, Netcom, Southern, Check Systems and any other Person named or identified as a Debtor under the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation Loan Documents from time to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally time hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint unconditionally: (i) agree that each is JOINTLY and several liability with SEVERALLY liable to Lender for the other Issuers with respect to the full and prompt payment and performance of all of the Obligations arising Indebtedness under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations Documents in accordance with the terms thereof, then in each such event, ; (ii) agree to fully and promptly perform all of their obligations hereunder and the other Issuers will make such payment Loan Documents with respect to, or perform, to each Loan hereunder as if such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers Loan had been made directly to it; and (iii) agree as a primary obligation to indemnify Lender on demand for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers loss incurred by Lender as often as occasion therefor may arise and without requirement on the part a result of any of the Purchasers first Indebtedness of any Debtor being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to marshal Lender or any person, the amount of its claims such loss being the amount which Lender would otherwise have been entitled to recover from any one or to exercise any more of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to ESystems, Netcom, Southern, Check Systems and any other source or means Person named as a Debtor under the Loan Documents from time to time. Each Debtor hereby designates ESystems as its representative and agent on its behalf for the purposes of obtaining payment of any giving instructions with respect to the disbursement of the Obligations proceeds of the Loans, selecting interest rate options, giving and receiving all other notices and consents hereunder or to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants) on behalf of such Debtor under the Loan Documents. ESystems hereby accepts such appointment. Lender may regard any notice or other communication pursuant to any Loan Document from ESystems as a notice or communication from each Debtor. Each warranty, covenant, agreement and undertaking made on behalf of any Debtor by ESystems shall be deemed for all purposes to have been made by such Debtor and shall be binding upon and enforceable against such Debtor to the same extent as it if the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of same had been made directly by such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Debtor.
Appears in 1 contract
Joint and Several Liability. Each Borrowers shall be liable for all amounts due to Lender under this Agreement, regardless of which Borrower actually receives the Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which Lender accounts for such Loans, Letter of Credit Accommodations or other extensions of credit on its books and records. The Obligations with respect to Loans made to a Borrower, and the Obligations arising as a result of the Issuers is accepting joint and several liability hereunder in consideration of a Borrower hereunder, with respect to Loans made to the other Borrowers hereunder, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers. The Obligations arising as a result of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the payment and performance other Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (a) the validity or enforceability, avoidance or subordination of the Obligations arising under this Agreement and of the other Loan Documents, it being the intention Borrowers or of any promissory note or other document evidencing all or any part of the parties hereto that all Obligations of the other Borrowers, (b) the absence of any attempt to collect the Obligations shall be from the joint and several obligations other Borrowers, any Guarantor or any other security therefor, or the absence of each any other action to enforce the same, (c) the waiver, consent, extension, forbearance or granting of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment indulgence by Lender with respect to any provisions of any instrument evidencing the Obligations of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrowers, or any part thereof, made or any other agreement now or hereafter executed by the other Borrowers and delivered to Lender, (d) the failure by Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrowers, (e) the election of Lender in respect any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (f) the disallowance of all or any portion of the claim(s) of Lender for the repayment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan DocumentsBorrowers under Section 502 of the Bankruptcy Code, or (g) any other circumstances which might constitute a legal or equitable discharge or defense of a Guarantor or of the other Borrowers, other than the wilful misconduct, gross negligence or bad faith of Lender as determined pursuant to a final, non-appealable order of a court of competent jurisdiction. With respect to the extent Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrowers hereunder, each Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any of the Issuers shall be adjudicated to be invalid remedy which Lender now has or unenforceable for may hereafter have against Borrowers, any reason (including, without limitation, because of endorser or any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of all or any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full part of the Obligations), and any benefit of, and any right to participate in, any security or collateral given to Lender. Upon any Event of Default and for so long as the same is continuing, Lender may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against the other Borrowers or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Lender shall be under no obligation to marshall any assets in favor of Borrower(s) or against or in payment of ▇▇▇ ▇▇ ▇ll of the Obligations.
Appears in 1 contract
Sources: Loan and Security Agreement (Play by Play Toys & Novelties Inc)
Joint and Several Liability. Each All obligations of Borrower under this Agreement shall be joint and several, and all references to Borrower shall mean each and every Borrower. This means that each Borrower signing below is responsible for all obligations in this Agreement. Where any one or more of the Issuers parties is accepting joint and several a corporation, partnership, limited liability hereunder in consideration company or similar entity, it is not necessary for Lender to inquire into the powers of any of the financial accommodation officers, directors, partners, members, or other agents acting or purporting to act on the entity's behalf, and any obligations made or created in reliance upon the professed exercise of such powers shall be provided guaranteed under this Agreement. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. No delay or omission on the Purchasers part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Borrower, or between Lender and any Grantor, shall constitute a waiver of any of Lender's rights or of any of Borrower's or any Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, for the mutual benefit, directly and indirectly, granting of each of the Issuers such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each cases such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and consent may be enforced by them from time to time against any granted or withheld in the sole discretion of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Lender.
Appears in 1 contract
Sources: Quarterly Report
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other Credit Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers under this AgreementBank hereunder, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrower to accept joint and several liability for the obligations of each of them. with respect to the Advances.
(b) Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrower with respect to the payment and performance of all of the Obligations arising under this Agreement and obligations with respect to the other Loan DocumentsAdvances, it being the intention of the parties hereto that all of the Obligations obligations with respect to the Advances shall be the joint and several obligations of each of the Issuers both Borrowers without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers either Borrower shall fail to make any payment with respect to any of the Obligations obligations with respect to any Advances as and when due or to perform any of the Obligations obligations with respect to the Advances in accordance with the terms thereof, then in each such event, event the other Issuers Borrower will make such payment with respect to, or perform, such Obligation. Each obligations.
(d) The obligations with respect to the Advances of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against each Borrower hereunder and under the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 Credit Documents constitute full recourse obligations of such Issuer, Borrower enforceable against it to the full extent of its properties and assets. The provisions , irrespective of the validity, regularity or enforceability of this Section 1.4 are made for the benefit Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided in this Agreement, each Borrower hereby waives notice of the Purchasers acceptance of its joint and their successors and assignsseveral liability, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part notice of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining payment advance made under this Agreement, notice of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If action at any time, any payment, time taken or any part thereof, made omitted by Bank under or in respect of any of the Obligations is rescinded obligations with respect to the Advances, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or must otherwise be restored or returned by postponement of the Purchasers upon time for the insolvency, bankruptcy or reorganization payment of any of the Issuers, or otherwiseobligations with respect to the Advances, the provisions acceptance of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).any
Appears in 1 contract
Joint and Several Liability. (a) Each Borrower, separately and severally, hereby appoints and designates ISC as its agent and attorney-in-fact to act on behalf of it for all purposes of the Credit Documents. ISC shall have authority to exercise on behalf of each Borrower all rights and powers that ISC deems necessary, incidental or convenient in connection with the Credit Documents, including the authority to execute and deliver certificates, documents, agreements and other instruments referred to or provided for in the Credit Documents, request Advances and Letters of Credit hereunder, receive all proceeds of Advances, give all notices, approvals and consents required or requested from time to time by the Lender and take any other actions and steps that each Borrower could take for its own account in connection with the Credit Documents from time to time, it being the intent of each Borrower to grant to ISC plenary power to act on behalf of each Borrower in connection with and pursuant to the Credit Documents. The appointment of ISC as agent and attorney-in-fact for each Borrower hereunder shall be coupled with an interest and be irrevocable so long as any Credit Document shall remain in effect. The Lender need not obtain any Borrower's consent or approval for any act taken by ISC pursuant to any Credit Document, and all such acts shall bind and obligate ISC and each Borrower, jointly and severally. Each Borrower forever waives and releases any claim (whether now or hereafter arising) against the Lender based on any claim of ISC's lack of authority to act on behalf of each Borrower in connection with the Credit Documents.
(b) Each of the Issuers is accepting joint Borrowers, and several liability hereunder in consideration by its acceptance of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly Lender hereby confirm that it is the intention of all such Persons that this Agreement and indirectly, the Obligations of each of the Issuers and in consideration Borrowers hereunder not constitute a fraudulent transfer or conveyance for purposes of the undertakings United States Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Governmental Requirement covering the protection of creditors' rights or the relief of debtors to the extent applicable to this Agreement and the Obligations of each of the Issuers to accept joint and several liability for Borrowers hereunder. To effectuate the obligations of foregoing intention, each of them. Each of the Issuers jointly Borrowers and severally the Lender hereby irrevocably agrees that the Obligations and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations liabilities of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid Borrowers under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount as will, after giving effect to such maximum amount and all of the other contingent and fixed liabilities of such Borrower that is permissible are relevant under applicable Law. To the extent that such Governmental Requirement, and after giving effect to any Loan Party is deemed collections from, any rights to be a surety receive contributions from, or guarantor any payment made by or on behalf of any of the other Loan PartyBorrowers in respect of the Obligations of such other Borrower under this Agreement, each such Loan Party hereby waives result in the Obligations and all defenses of the other liabilities of each of the Borrowers under this Agreement not constituting a fraudulent transfer or conveyance.
(c) Each Borrower (i) acknowledges that it has had full and complete access to suretyship the underlying papers relating to the Obligations and guarantee which may all other papers executed by any person in connection with the Obligations, has reviewed them and is fully aware of the meaning and effect of their contents; (ii) is fully informed of all circumstances that bear upon the risks of executing this Agreement and the other Credit Documents that a diligent inquiry would reveal; (iii) has adequate means to obtain from ISC on a continuing basis information concerning IS C's financial condition and is not depending on the Lender to provide such information, now or in the future; and (iv) agrees that the Lender shall have any obligation to advise or notify it or to provide it with any data or information.
(d) Each Borrower hereby agrees that its obligations and liabilities with respect to the Obligations are joint and several with ISC, continuing, absolute and unconditional (subject to the provisions of subsection (b) of this section). Without limiting the generality of the foregoing, the obligations and liabilities of each Borrower with respect to the Obligations shall not be available released, discharged, impaired, modified or in any way affected by (i) the invalidity or unenforceability of any Credit Document, (ii) the failure of the Lender to it give each Borrower a copy of any notice given to ISC, (iii) any modification, amendment or supplement of any obligation, covenant or agreement contained in any Credit Document, (iv) any compromise, settlement, release or termination of any obligation, covenant or agreement in any Credit Document, (v) any waiver of payment, performance or observance by or in favor of ISC of any obligation, covenant or agreement under applicable law any Credit Document, (vi) any consent, extension, indulgence or other than action or inaction, or any exercise or non-exercise of any right, remedy or privilege with respect to any Credit Document, (vii) the extension of time for payment in full or performance of any of the Obligations), or (viii) any other matter that might otherwise be raised in avoidance of, or in defense against an action to enforce, the obligations of each Borrower under this Agreement, the Revolving Note or any other Credit Document.
(e) None of the Borrowers will exercise any rights that it may have or acquire by way of subrogation under this Agreement or any of the other Credit Documents or the Subrogation and Contribution Agreement referred to in subsection (f) below, by any payment made hereunder or under any of the other Credit Documents or otherwise, until all the Obligations have been paid in full and this Agreement has been terminated and is no longer subject to reinstatement. If any amount shall be paid to a Borrower on account of any such subrogation rights at any time when all of the Obligations shall not have been paid in full and this Agreement terminated, such amount shall be held in trust for the benefit of the Lender and shall be paid forthwith to the Lender to be credited and applied upon the Obligations, whether matured or unmatured, in accordance with the terms of the Credit Documents.
Appears in 1 contract
Sources: Revolving Loan Agreement (International Shipholding Corp)
Joint and Several Liability. Each (i) Notwithstanding any provision to the contrary in any Loan Document, all Obligations of the Issuers is accepting U.S. Borrowers under this Agreement are joint and several liability hereunder Obligations of the U.S. Borrowers in consideration of the financial accommodation accommodations to be provided by the Purchasers Administrative Agent and Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower (including Bombay Canada) and in consideration of the undertakings of each of the Issuers other U.S. Borrowers to accept joint and several liability for the obligations of each of them. Obligations.
(ii) Each of the Issuers U.S. Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers U.S. Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Agreement and the other Loan DocumentsSection 2.2(A)(d)), it being the intention of the parties hereto U.S. Borrowers that all the Obligations (including those of Bombay Canada) shall be the joint and several obligations of each of the Issuers U.S. Borrowers without preferences or distinction among them. .
(iii) If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers U.S. Borrowers will make such payment with respect to, or perform, such Obligation. Each .
(iv) The provisions of Sections 2.2 through Section 2.7 of the Issuers further agrees Guaranty and Security Agreement are hereby incorporated except that it Subsidiary Guarantor shall have no right mean U.S. Borrowers which are Subsidiaries of subrogationthe Parents, indemnityGuarantor shall refer to the U.S. Borrowers, reimbursement or contribution against Guaranteed Obligations shall refer to the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full Obligations, and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of Guaranty shall refer to this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. 2.2(A)(d) mutatis mutandis.
(v) The provisions of this Section 1.4 2.2(A)(d) are made for the benefit of the Purchasers and their successors Secured Parties, and assigns, and may be enforced by it or them from time to time against any of the Issuers or all U.S. Borrowers as often as occasion therefor therefore may arise and without requirement on the part of any of the Purchasers such Secured Parties first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Issuers U.S. Borrowers or to exhaust any remedies available to it or them against any of the other Issuers Borrowers 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 1.4 2.2(A)(d) shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, payment or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Secured Party upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 2.2(A)(d) will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 1 contract
Joint and Several Liability. (a) Each of the Issuers is accepting Borrower accepts joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Administrative Agent and the Lenders under this AgreementCredit Agreement and the other Credit Documents, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrower to accept joint and several liability for the obligations of each of them. Borrower.
(b) Each of the Issuers Borrower shall be jointly and severally hereby irrevocably liable for the Obligations, regardless of which Borrower actually receives the Loans or L/C Obligations hereunder or the amount of the Obligations received or the manner in which the Administrative Agent or any Lender accounts for the Obligations on its books and unconditionally acceptsrecords. Each Borrower’s obligations with respect to Loans or L/C Obligations made to it, not merely and each Borrower’s obligations arising as a surety, but also as a co-debtor, result of the joint and several liability with the other Issuers of such Borrower hereunder, with respect to Loans or L/C Obligations made to and other Obligations owing by the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsBorrowers hereunder, it being the intention of the parties hereto that all the Obligations shall be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrower.
(c) Each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans or L/C Obligations made to and other Obligations owing by the Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (A) the validity or enforceability, avoidance or subordination of the obligations of each any other Borrower or of any promissory note or other document evidencing all or any part of the Issuers without preferences obligations of any other Borrower, (B) the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or distinction among them. If and any other security therefor, or the absence of any other action to enforce the extent that same, (C) the waiver, consent, extension, forbearance or granting of any of indulgence by the Issuers shall fail to make Administrative Agent or any payment Lender with respect to any provision of any instrument evidencing the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, made in respect or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent or any Lender, (D) the failure by the Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Borrower, (E) the Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (F) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code, (G) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (H) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans or L/C Obligations made to the Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Credit Agreement and the other Credit Documents shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization any other liability of any Borrower to the Administrative Agent or any Lender.
(d) Upon the occurrence and during the continuation of any Event of Default, the IssuersAdministrative Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full portion of the Obligations), without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations.
Appears in 1 contract
Joint and Several Liability. Each All obligations of Borrower under this Agreement shall be joint and several, and all references to Borrower shall mean each and every Borrower. This means that each Borrower signing below is responsible for all obligations In this Agreement. Where any one or more of the Issuers parties is accepting joint and several a corporation, partnership, limited liability hereunder in consideration company or similar entity, it is not necessary for Lender to Inquire into the powers of any of the financial accommodation officers, directors, partners, members, or other agents acting or purporting to act on the entity's behalf, and any obligations made or created In reliance upon the professed exercise of such powers shall be provided guaranteed under this Agreement. No Waiver by L▇▇▇▇▇. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by L▇▇▇▇▇. No delay or omission on the Purchasers part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by L▇▇▇▇▇ of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by L▇▇▇▇▇, nor any course of dealing between L▇▇▇▇▇ and Borrower, or between Lender and any Grantor, shall constitute a waiver of any of Lender's rights or of any of Borrower's or any Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, for the mutual benefit, directly and indirectly, granting of each of the Issuers such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in consideration all cases such consent may be granted or withheld in the sole discretion of the undertakings of each of the Issuers Lender. Notices. Any notice required to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising be given under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be given In writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the joint and several obligations of each of the Issuers without preferences United States mail, as first class, certified or distinction among them. If and registered mail postage prepaid, directed to the extent that any addresses shown near the beginning of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligationthis Agreement. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers Any party may change its address for amounts so paid notices under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it by giving formal written notice to the full extent of its properties and assets. The provisions of this Section 1.4 are made for other parties, specifying that the benefit purpose of the Purchasers and their successors and assignsnotice is to change the party's address. For notice purposes, and may be enforced B▇▇▇▇▇▇▇ agrees to keep Lender Informed at all times of B▇▇▇▇▇▇▇'s current address. Unless otherwise provided or required by them from time to time against law. If there is more than one Borrower, any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort notice given by Lender 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party Borrower is deemed to be notice given to all Borrowers. Severability. If a surety court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or guarantor unenforceable as to any person or circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other person or circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable, if the offending provision cannot be so modified, It shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, Invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full provision of the Obligations)this Agreement.
Appears in 1 contract
Sources: Business Loan Agreement (Rw Holdings NNN Reit, Inc.)
Joint and Several Liability. (a) Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Agent and Lenders by each other Borrower. Although it is the express agreement and intent of Agent, Lenders and Borrowers that each Borrower is and shall be a primary obligor with respect to the Issuers is accepting joint obligations set forth herein and several liability hereunder not a guarantor, indemnitor, surety or otherwise only secondarily liable for such obligations, in consideration of the financial accommodation event and to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for extent that the obligations of each of them. Each such Borrower undertaken herein might in the future be construed to consist, in whole or in part, of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with guaranty of obligations of the other Issuers Borrower, each Borrower consents and agrees that such guaranty obligation (as the same may be construed) is and shall be a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 9.15 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 9.15 shall be absolute, unconditional and irrevocable, irrespective of, and unaffected by, (i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, any Obligation or any Loan Document, agreement, document or instrument to which any Borrower is or may become a party; (ii) the absence of any action to enforce any Obligation or Loan Document or the waiver or consent by the Agent or any Lender with respect to any of the provisions governing any Obligation or Loan Document; (iii) the insolvency of any Borrower, Guarantor or other Obligor; and (iv) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(b) Each Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel the Agent or Lenders to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Borrower, Guarantor or Obligor, any other party or against any security for the payment and performance of all the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. Each Borrower consents and agrees that the Agent or the Lenders may, at any time and from time to time, without notice or demand, whether before or after an actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness hereof as to such Borrower: (i) with the consent of each Borrower, supplement, restate, modify, amend, increase, decrease, extent, renew or otherwise change the time for payment or the terms of this Agreement, any Loan Document or any part thereof, including any increase or decrease of the Obligations arising under rate(s) of interest thereon; (ii) with the consent of each Borrower, supplement, restate, modify, amend, increase, decrease, or enter into or give any agreement with respect to, this Agreement, any Loan Document or any part thereof, or any of the Security Documents; (iii) waive, approve or consent to any action, condition, covenant, default, remedy, right, representation or term of this Agreement or any other Loan Document; (iv) accept partial payments; (v) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the order or manner of sale thereof as the Agents or Lenders in their sole and absolute discretion may determine; (vi) release any person from any personal liability with respect to this Agreement or any part thereof; (vii) settle, release on terms satisfactory to the Required Lenders or by operation of applicable Legal Requirements or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (viii) consent to the merger, change or any other restructuring or termination of the corporate or partnership existence of any Borrower or any other person, and correspondingly restructure the obligations evidenced hereby, and any such merger, change, restructuring or termination shall not affect the liability of any Borrower or the continuing effectiveness hereof, or the enforceability hereof with respect to all or any part of the obligations evidenced hereby. It is agreed among each Borrower, the Agent and Lenders that the foregoing consents and waivers are of the essence of the transaction contemplated by this Agreement and the other Loan DocumentsDocuments and that, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers but for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of 9.15 and such Issuerwaivers, enforceable against it the Agent and Lenders would decline to enter into this Agreement.
(c) Each Borrower agrees that the full extent of its properties and assets. The provisions of this Section 1.4 9.15 are made for the benefit of the Purchasers Agent and the other Lenders and their successors respective successors, transferees, endorsees and assigns, and may be enforced by them from time nothing herein contained shall impair, as between any other Borrower and the Agent or the other Lenders, the obligations of such other Borrower under the Loan Documents.
(d) Notwithstanding anything to time against the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 9.15(g) of this Agreement, each Borrower hereby expressly and irrevocably waives any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor. Each Borrower acknowledges and agrees that this waiver is intended to benefit the Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section 17, and that the Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 9.15(d).
(e) If the Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Issuers as often as occasion therefor may arise and without requirement on Loan Documents, the part of Agent or any of the Purchasers first to marshal any Lender may, at its sole option, determine which of its claims remedies or to exercise rights it may pursue without affecting any of its rights against and remedies under this Section 9.15. If, in the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining payment exercise of any of its rights and remedies, the Obligations hereunder Agent or any Lender shall forfeit any of its rights or remedies, including its right to elect enter a deficiency judgment against any Borrower or any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any timePerson, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, whether because of any applicable Laws relating laws pertaining to fraudulent conveyances “election of remedies” or transfersthe like, each Borrower hereby consents to such action by the Agent or such Lender and waives any claim based upon such action, even if such action by the Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by the Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of the Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations.
(f) then Notwithstanding any provision herein contained to the Obligations contrary, each Borrower’s liability under this Section 9.15 (which liability is in any event in addition to amounts for which such Borrower is primarily liable under Article II of such Issuer hereunder this Agreement) shall be limited to an amount not to exceed as of any date of determination the maximum greater of:
(i) the net amount of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and
(ii) the amount that is permissible could be claimed by the Agent and Lenders from such Borrower under applicable Law. To the extent that any Loan Party is deemed to be a surety this Section 9.15 without rendering such claim voidable or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it avoidable under applicable law (other than payment in full Section 548 of the Obligations)Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Borrower under Section 9.15(g) of this Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Strategic Realty Trust, Inc.)
Joint and Several Liability. (a) Each of the Issuers Loan Parties is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Administrative Agent and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Loan Parties and in consideration of the undertakings of each of the Issuers other Loan Party to accept joint and several liability for the obligations of each of them. Obligations.
(b) Each of the Issuers Loan Parties, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Loan Parties, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Agreement and the other Loan DocumentsSection 10.19), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations Obligations of each of the Issuers Loan Parties without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Loan Parties shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Loan Parties will make such payment with respect to, or perform, such Obligation. Each .
(d) The Obligations of each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer Loan Parties under the provisions of this Section 1.4 10.19 constitute full recourse obligations Obligations of such Issuer, each of the Loan Parties enforceable against it each such Loan Party to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement as against any particular Loan Party.
(e) Except as otherwise expressly provided in this Agreement, but only to the extent permitted by applicable law, each of the Loan Parties hereby waives notice of acceptance of its joint and several liability, notice of any Loans made, or Letter of Credit issued, extended or renewed under this Agreement, notice of the occurrence of any Event of Default or Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or any Lender under or in respect of any of the Obligations, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement and the other Loan Documents. Each of the Loan Parties hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or any Lender at any time or times in respect of any Event of Default or Default by any of the Loan Parties in the performance or satisfaction of any term, covenant, condition or provision of this Agreement or any of the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent or any Lender 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 of the Loan Parties. Without limiting the generality of the foregoing, but only to the extent permitted by applicable law, each of the Loan Parties assents to any other action or delay in acting or failure to act on the part of the Administrative Agent or any Lender with respect to the failure by any of the Loan Parties 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, regulations thereunder, which might, but for the provisions of this Section 10.19, afford grounds for terminating, discharging or relieving any of the Loan Parties, in whole or in part, from any of its Obligations under this Section 10.19, it being the intention of each of the Loan Parties that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Loan Parties under this Section 10.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Loan Parties under this Section 10.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any of the Loan Parties, the Administrative Agent or any Lender. The joint and several liability of the Loan Parties 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 of the Loan Parties, the Administrative Agent or any Lender.
(f) The provisions of this Section 1.4 10.19 are made for the benefit of the Purchasers Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by any of them from time to time against any or all of the Issuers Loan Parties as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any of the Purchasers Lender first to marshal m▇▇▇▇▇▇▇ any of its claims or to exercise any of its rights against the any other Issuers Loan Party or to exhaust any remedies available to it against the any other Issuers Loan Party 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 1.4 10.19 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers any Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersLoan Parties, or otherwise, the provisions of this Section 1.4 10.19 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(i) Each of the Loan Parties hereby irrevocably waives, and agrees that it will not enforce, any provision of its rights of contribution or subrogation against any other Loan Party with respect to the contrary contained herein any liability incurred by such Loan Party hereunder or in under any of the other Loan Documents, any payments made by such Loan Party to the extent Administrative Agent for the Obligations accounts of the Lenders with respect to any of the Issuers Obligations or any collateral security therefor. Such waiver and agreement is for the benefit of the other Loan Parties, the Lenders and the Administrative Agent. If such waiver and agreement shall be adjudicated determined to be invalid or unenforceable by a court of competent jurisdiction, any claim which such Loan Party may have against such other Loan Party with respect to any payments to the Administrative Agent for any reason (includingthe account of the Lenders hereunder are hereby expressly made subordinate and junior in right of payment, without limitationlimitation as to any increases in the Obligations arising hereunder, because to the prior payment in full of all amounts due and owing by such other Loan Party to the Administrative Agent and the Lenders and, in the event of any applicable Laws insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to fraudulent conveyances such other Loan Party, its debts or transfersits assets, whether voluntary or involuntary, all Indebtedness of such other Loan Party owing to the Lenders (“Senior Indebtedness”) then shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to such Loan Party therefor. Each Loan Party hereby agrees that for so long as any Obligations are outstanding hereunder the provisions of this Section 10.19(g) may be relied on directly by any holder of Senior Indebtedness regardless of whether such holder is a party hereto.
(i) Notwithstanding the provisions of the preceding clause (i), each of the Loan Parties shall have and be entitled to (1) all rights of subrogation otherwise provided by law in respect of any payment such Loan Party may make or be obligated to make under this Credit Agreement and (2) all claims (as defined in the Bankruptcy Code) it would have against any of the other Loan Parties in the absence of the preceding clause (i), and to assert and enforce the same, in each case on and after, but at no time prior to , the date (the “Subrogation Trigger Date”) which is one (1) year and five (5) days after the date on which all the Obligations have been indefeasibly repaid in full if and only if (A) no Default or Event of Default of the type described in §§13.1(g) or (h) with respect to the other Loan Parties has existed at any time on or after the Closing Date to and including the Subrogation Trigger Date and (B) the existence of the Loan Party’s rights under this clause (ii) would not make the Loan Party a creditor (as defined in the Bankruptcy Code) of the other Loan Parties in any insolvency, bankruptcy, reorganization or similar proceeding commenced on or prior to the Subrogation Trigger Date.
(h) Each Loan Party that is a Qualified ECP Guarantor at the time the joint and several obligations, any of the Guaranties or the grant of the security interest under the Loan Documents, in each case, by any Specified Loan Party, becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under this Agreement, any applicable Guaranty and the other Loan Documents in respect of such Issuer hereunder shall be limited Swap Obligation (but, in each case, only up to the maximum amount of such liability that is permissible can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it this Article 10.19 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this clause (other than payment h) shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. Each Qualified ECP Guarantor intends this clause (h) to constitute, and this clause (h) shall be deemed to constitute, a guarantee of the Obligations)obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
Appears in 1 contract
Joint and Several Liability. (a) Each of the Issuers Borrowers acknowledges and agrees that (i) it is accepting a co-borrower hereunder and shall be jointly and severally, with the other Borrower, directly and primarily liable for the Obligations regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans or other extensions of credit received or the manner in which the Administrative Agent and/or any Lender accounts for such Loans or other extensions of credit on its books and records, (ii) each of the Borrowers shall have the obligations of co-maker and shall be primary obligors with respect to all Loans, the Notes, the Letters of Credit and the other Obligations, it being agreed that such extensions of credit to each Borrower inure to the benefit of both Borrowers, and (iii) the Administrative Agent and each of the Lenders is relying on such joint and several liability hereunder in consideration of the financial accommodation Borrowers as co-makers in extending the Loans and issuing the Letters of Credit hereunder. Each Borrower's obligations with respect to be provided by the Purchasers under this AgreementLoans made to it or with respect to any Letters of Credit issued for its account, for the mutual benefit, directly and indirectly, of each Borrower's obligations arising as a result of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability of the Borrowers hereunder, with respect to Loans made to the other Borrower hereunder or with respect to any Letters of Credit issued for the account of the other Borrower hereunder, shall be separate and distinct obligations, but all such Obligations shall be primary obligations of each of themBorrower. Each Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, by acceleration or otherwise) of any principal of, or interest on, any Obligation payable by it to the Lender, it will forthwith pay the same, without notice of demand.
(b) Each Borrower's obligations arising as a result of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with of the other Issuers Borrowers hereunder with respect to Obligations of the payment and performance other Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (i) the validity or enforceability, avoidance or subordination of the Obligations of the other Borrower or of any Note or other document evidencing all or any part of the Obligations of the other Borrower, (ii) the absence of any attempt to collect the Secured Obligations from the other Borrower, or any other security therefore, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender with respect to any provision of any instrument evidencing the Obligations of the other Borrower, or any part thereof, or any other agreement now or hereafter executed by the other Borrower and delivered to the Administrative Agent or any Lender, (iv) the failure by the Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security for the Obligations of the other Borrower, (v) any borrowing or grant of a security interest by the other Borrower, as debtors-in-possession under Section 364 of the Bankruptcy Code, (vi) the 49 disallowance of all or any portion of the Administrative Agent's or any Lender's claim(s) for the repayment of the Obligations of the other Borrower under Section 502 of the Bankruptcy Code, or (vii) any other circumstances which might constitute a legal or equitable discharge or defense of any other Borrower.
(c) With respect to each Borrower's obligations arising under as a result of the joint and several liability of the Borrowers hereunder with respect to Obligations any of the other Borrower hereunder, each Borrower waives, until the Obligations shall have been paid in full in cash and this Agreement and the other Loan DocumentsDocuments shall have terminated, it being any right to enforce any right of subrogation or any remedy which the intention Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the parties hereto that all Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations.
(d) No payment or payments made by any of the Borrowers or any other Person or received or collected by the Administrative Agent or any Lender from either of the Borrowers or any other Person by virtue of any action or proceeding or any set-off-or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and deemed (except to the extent that any Obligations are satisfied) to modify, release or otherwise affect the liability of the Issuers each Borrower under this Agreement, which shall fail to make any payment with respect to any of remain liable for the Obligations as and when due or to perform any of until the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly are paid in full in cash and all Obligations under this Agreement have been is terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 1 contract
Joint and Several Liability. (a) Each of the Issuers is accepting joint Borrower states and several liability hereunder in consideration of the financial accommodation acknowledges that: (i) pursuant to be provided by the Purchasers under this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity; (ii) each Borrower has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Agents and Lenders hereunder and a desire of each Borrower that each Borrower execute and deliver this Agreement; and (iv) each Borrower has requested and bargained for the mutual benefit, directly structure and indirectly, terms of each and security for the advances contemplated by this Agreement.
(b) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Agents and Lenders for the full and prompt payment and performance of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each Borrower under this Agreement and each other Loan Document that may specify that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of them. Each its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify each Agent and each Lender, on demand, for and against any loss incurred by any Agent or any Lender as a result of any of the Issuers jointly obligations of any Borrower (the "subject Borrower") being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to the subject Borrower or any Person, the amount of such loss being the amount which such Agent or Lender would otherwise have been entitled to recover from Borrowers.
(c) It is the intent of each Borrower that the indebtedness, obligations and severally hereby irrevocably liabilities hereunder of no one of them be subject to challenge on any basis related to any federal or state Law dealing with fraudulent conveyances or any other Law related to transfers for less than fair or reasonably equivalent value. Accordingly, as of the date hereof, the liability of each Borrower under this Section 3.06 together with all of its other liabilities to all Persons as of the date hereof and unconditionally acceptsas of any other date on which a transfer is deemed to occur by virtue of this Agreement, not merely calculated in amount sufficient to pay its probable net liabilities on its existing indebtedness as the same become absolute and matured ("Dated Liabilities"), is and is to be, less than the amount of the aggregate of a suretyfair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 3.06: (i) grants to and recognizes in each other Borrower ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but also for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower, or (ii) as the case may be, acknowledges receipt of and recognizes its right to subrogation and contribution ratably from the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 3.06. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that each Borrower will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a co-debtor, material objective of this Section 3.06 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several liability with obligations hereunder.
(d) Each Borrower agrees and acknowledges that the present structure of the credit facilities detailed in this Agreement is based in part upon the financial and other Issuers with respect information presently known to Agents and Lenders regarding each Borrower, the payment corporate and performance other organizational structure of Borrowers, and the present financial condition of each Borrower. Upon or after the occurrence of an Event of Default and so long as it is continuing, each Borrower hereby agrees that Required Lenders shall have the right, in their sole credit judgment, to require that any or all of the Obligations arising following changes be made to these credit facilities: (i) restrict loans and advances between Borrowers, (ii) separate the Loans into separate loans to each Borrower as shall be determined by Required Lenders, and (iii) establish such other procedures as shall be reasonably deemed by Required Lenders to be useful in tracking where Loans are made under this Agreement and the other Loan Documents, it being the intention source of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each payments received by Lenders on such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Loans.
Appears in 1 contract
Sources: Credit Agreement (Ellora Energy Inc)
Joint and Several Liability. Each of (a) The Borrowers are accepting the Issuers is accepting joint and several liability provided for hereunder in consideration of the financial accommodation accommodations provided and to be provided by the Purchasers Bank under this Agreement, Agreement for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of each of the undertakings of each of the Issuers Borrower herein to accept joint and several liability liability, for their mutual benefit, for the obligations of each of the other of them. Each of the Issuers .
(b) The Borrowers, jointly and severally as hereinafter described, hereby irrevocably and unconditionally acceptsaccept, not merely as a surety, surety but also as a co-debtordebtors, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising indebtedness, liabilities and obligations under this Agreement Agreement, the Notes and the other Loan Documents, it being the intention of the parties hereto that all the Obligations indebtedness, liabilities and obligations under this Agreement, the Notes and the other Loan Documents shall be the joint and several obligations of each of all the Issuers Borrowers without preferences preference or distinction among them. .
(c) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations indebtedness, liabilities and obligations under this Agreement, the Notes and the other Loan Documents, as and when due or to perform any of the Obligations indebtedness, liabilities and obligations under this Agreement, the Notes and the other Loan Documents in accordance with the terms thereof, then in each such event, event each of the other Issuers will Borrowers will, forthwith upon demand by the Bank, make such payment with respect to, or perform, such Obligationindebtedness, liabilities and obligations under this Agreement, the Notes and the other Loan Documents pursuant to the terms hereof.
(d) Each Borrower hereby acknowledges and consents to all provisions of this Agreement. In connection with its obligations under this Section, except to the extent that notice is expressly required by this Agreement, each Borrower hereby waives notice of acceptance of the joint and several liability contained in this Section, notice of any loan or advance to any Borrower under this Agreement, notice of the occurrence of any Default or any Event of Default or of any demand upon any Borrower for any payment under this Agreement, notice of any action at any time taken or omitted by the Bank under or in respect of this Agreement, any Note or any other Loan Document and, generally, all demands, notices, protests and other formalities of every kind in connection with the joint and several liability contained in this Section and the other provisions of this Agreement. In connection with its obligations under this Section, each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the indebtedness, liabilities and obligations under this Agreement, the Notes and the other Loan Documents, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Bank 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, the Notes or any other Loan Document, any and all other indulgences whatsoever by the Bank in respect of any of the indebtedness, liabilities and obligations under this Agreement, the Notes and the other Loan Documents, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the indebtedness, liabilities and obligations under this Agreement, the Notes and the other Loan Documents or the addition, substitution or release, in whole or in part, of any Person or Persons primarily or secondarily liable in respect of any of the indebtedness, liability and obligations under this Agreement, the Notes and the other Loan Documents. Each of the Issuers further agrees that it shall have no Borrowers also waives: (i) any right to require the Bank to (A) proceed against any other Person, including any other Borrower, or (B) pursue any other remedy; and (ii) any defense arising by reason of subrogation(A) any disability or other defense of any Borrower or any other Person, indemnity(B) the cessation from any cause whatsoever, reimbursement other than payment or contribution against performance in full, of any of the indebtedness, liabilities and obligations under this Agreement, the Notes and the other Issuers for amounts so paid Loan Documents of the Borrowers or any other Person, or (C) any act or omission by the Bank which directly or indirectly results in or aids the discharge of any Borrower or any indebtedness, liabilities and obligations under this Agreement until such time as Agreement, the Purchasers have been indefeasibly paid in full Notes and all Obligations under this Agreement have been terminatedthe other Loan Documents by operation of law or otherwise. The obligations of each Issuer Borrower under this Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or the Bank. The joint and several liability of each Borrower in this Section shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, charter, membership, constitution or place of formation of any Borrower or the Bank. Each of the Borrowers agrees that each of the waivers set forth above are made with such Borrower's full knowledge of their significance and consequences, and such Borr▇▇▇▇ ▇▇▇ees that, under the provisions circumstances, the waivers are reasonable and not contrary to public policy or law. If any of this Section 1.4 constitute full recourse obligations of said waivers are determined to be contrary to any applicable law or public policy, such Issuer, enforceable against it waivers shall be effective only to the full extent of its properties and assets. permitted by law.
(e) The provisions of this Section 1.4 8.12 are made for the benefit of the Purchasers Bank and their its successors and assigns, and may be enforced by them the Bank from time to time against any of the Issuers Borrowers as often as occasion therefor therefore may arise and without requirement on the Bank's part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the any other Issuers Borrower or to exhaust any remedies available to it the Bank against the other Issuers another Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder indebtedness, liabilities and obligations evidenced by or arising under this Agreement, the Notes and the Loan Documents or to elect any other remedy. The provisions of this Section 1.4 8.12 shall remain in effect until all the Obligations indebtedness, liabilities and obligations evidenced by or arising under this Agreement, the Notes and the Loan Documents shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations indebtedness, liabilities and obligations evidenced by or arising under this Agreement, the Notes and the Loan Documents, is rescinded or must otherwise be restored or returned by the Purchasers Bank upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 8.12 will forthwith be reinstated and in effect effect, as though such payment had not been made. .
(f) Notwithstanding any provision to the contrary contained herein herein, in the Notes or in any other of the other Loan Documents, to the extent the Obligations joint obligations of any of the Issuers Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws state or federal law relating to fraudulent conveyances or transfers) then the Obligations obligations of such Issuer each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of whether federal or state and including, without limitation, the Obligationsfederal Bankruptcy Code).
Appears in 1 contract
Joint and Several Liability. Each Borrowers are defined collectively to include all Persons constituting the Borrowers; provided, however, that any references herein to “any Borrower”, “each Borrower” or similar references, shall be construed as a reference to each individual Person named as one of the Issuers is accepting Borrowers herein. Each Person so named shall be jointly and severally liable for all of the obligations of Borrowers under this Agreement. Each Borrower, individually, expressly understands, agrees and acknowledges, that the credit facilities contemplated herein would not be made available on the terms herein in the absence of the collective credit of all of the Persons constituting the Borrowers, the joint and several liability hereunder in consideration of all such Persons, and the cross-collateralization of the financial accommodation collateral of all such Persons. Accordingly, each Borrower, individually acknowledges that the benefit to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration Persons comprising the Borrower as a whole constitutes reasonably equivalent value, regardless of the undertakings of each amount of the Issuers to accept joint credit facilities contemplated herein actually borrowed by, advanced to, or the amount of collateral provided by, any individual Borrower. In addition, each entity comprising Borrowers hereby acknowledges and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of agrees that all of the Obligations arising under representations, warranties, covenants, obligations, conditions, agreements and other terms contained in this Agreement shall be applicable to and shall be binding upon and measured and enforceable individually against each Person comprising Borrowers as well as all such Persons when taken together. By way of illustration, but without limiting the other Loan Documents, it being the intention generality of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with foregoing, the terms thereof, then in of Section 9.1 of this Agreement are to be applied to each individual Person comprising the Borrowers (as well as to all such event, the other Issuers will make such payment with respect to, or performPersons taken as a whole), such Obligation. Each of that the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part occurrence of any of the Purchasers first events described in Section 9.1 of this Agreement as to marshal any Person comprising the Borrowers shall constitute an Event of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort Default even if such event has not occurred as to any other source Persons comprising the Borrowers or means of obtaining payment of any of the Obligations hereunder or as to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect such Persons taken as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)whole.
Appears in 1 contract
Joint and Several Liability. Each of the Issuers Borrower hereby agrees that such Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally liable for, and hereby irrevocably absolutely and unconditionally acceptsguarantees to the Agent and Lenders and their respective successors and assigns, not merely as the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Agent and Lenders by each other Borrower. Although it is the express agreement and intent of Agent, Lenders and Borrowers that each Borrower is and shall be a surety, but also as a co-debtor, joint and several liability with the other Issuers primary obligor with respect to the payment obligations set forth herein and performance of all of not a guarantor, indemnitor, surety or otherwise only secondarily liable for such obligations, in the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If event and to the extent that any the obligations of such Borrower undertaken herein might in the future be construed to consist, in whole or in part, of the Issuers guaranty of obligations of the other Borrower, each Borrower consents and agrees that such guaranty obligation (as the same may be construed) is and shall fail be a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 17 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 17 shall be absolute, unconditional and irrevocable, irrespective of, and unaffected by, (i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, any Obligation or any Loan Document, agreement, document or instrument to make which any payment Borrower is or may become a party; (ii) the absence of any action to enforce any Obligation or Loan Document or the waiver or consent by the Agent or any Lender with respect to any of the Obligations as and when due provisions governing any Obligation or to perform any of Loan Document; (iii) the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part insolvency of any of the Purchasers first to marshal any of its claims Borrower, Guarantor or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to Obligor; and (iv) any other source action or means circumstances that might otherwise constitute a legal or equitable discharge or defense of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Partyguarantor. Each Borrower shall be regarded, each such Loan Party hereby waives and all defenses shall be in the same position, as principal debtor with respect to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Obligations guaranteed hereunder.
Appears in 1 contract
Sources: Omnibus Amendment (TNP Strategic Retail Trust, Inc.)
Joint and Several Liability. (a) Each of the Issuers Borrowers acknowledges and agrees that (i) it is accepting a co-borrower hereunder and shall be jointly and severally, with the other Borrower, directly and primarily liable for the Obligations regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans or other extensions of credit received or the manner in which the Administrative Agent, the Issuing Bank and/or any Lender accounts for such Loans or other extensions of credit on its books and records, (ii) each of the Borrowers shall have the obligations of co-maker and shall be primary obligors with respect to all Loans, the Notes, the Letters of Credit and the other Obligations, it being agreed that such extensions of credit to each Borrower inure to the benefit of both Borrowers, and (iii) the Administrative Agent, the Issuing Bank and each of the Lenders is relying on such joint and several liability hereunder in consideration of the financial accommodation Borrowers as co-makers in extending the Loans and issuing the Letters of Credit hereunder. Each Borrower’s obligations with respect to be provided by the Purchasers under this AgreementLoans made to it or with respect to any Letters of Credit issued for its account, for the mutual benefit, directly and indirectly, of each Borrower’s obligations arising as a result of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability of the Borrowers hereunder, with respect to Loans made to the other Borrower hereunder or with respect to any Letters of Credit issued for the account of the other Borrower hereunder, shall be separate and distinct obligations, but all such Obligations shall be primary obligations of each of themBorrower. Each Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, by acceleration or otherwise) of any Obligation payable by it to the Administrative Agent, the Issuing Bank or any Lender, it will forthwith pay the same, without notice of demand.
(b) Each Borrower’s obligations arising as a result of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with of the other Issuers Borrowers hereunder with respect to Obligations of the payment and performance other Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (i) the validity or enforceability, avoidance or subordination of the Obligations of the other Borrower or of any Note or other document evidencing all or any part of the Obligations of the other Borrower, (ii) the absence of any attempt to collect the Obligations from the other Borrower, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent, the Issuing Bank or any Lender with respect to any provision of any instrument evidencing the Obligations of the other Borrower, or any part thereof, or any other agreement now or hereafter executed by the other Borrower and delivered to the Administrative Agent, the Issuing Bank or any Lender, (iv) the failure by the Administrative Agent, the Issuing Bank or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security for the Obligations of the other Borrower, (v) any borrowing or grant of a security interest by the other Borrower, as debtors-in-possession under Section 364 of the Bankruptcy Code, (vi) the disallowance of all or any portion of the Administrative Agent’s, the Issuing Bank’s or any Lender’s claim(s) for the repayment of the Obligations of the other Borrower under Section 502 of the Bankruptcy Code, or (vii) any other circumstances which might constitute a legal or equitable discharge or defense of any other Borrower.
(c) With respect to each Borrower’s obligations arising under as a result of the joint and several liability of the Borrowers hereunder with respect to Obligations any of the other Borrower hereunder, each Borrower waives, until the Obligations shall have been paid in full in cash and this Agreement and the other Loan DocumentsDocuments shall have terminated, it being any right to enforce any right of subrogation or any remedy which the intention Administrative Agent, the Issuing Bank or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the parties hereto that all Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent, the Issuing Bank or any Lender to secure payment of the Obligations.
(d) No payment or payments made by either of the Borrowers or any other Person or received or collected by the Administrative Agent, the Issuing Bank or any Lender from either of the Borrowers or any other Person by virtue of any action or proceeding or any set-off-or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and deemed (except to the extent that any Obligations are satisfied) to modify, release or otherwise affect the liability of the Issuers each Borrower under this Agreement, which shall fail to make any payment with respect to any of remain liable for the Obligations as and when due or to perform any of until the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly are paid in full in cash and all Obligations under this Agreement have been is terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 1 contract
Sources: Credit Agreement (Crawford & Co)
Joint and Several Liability. (a) Each Borrower states and acknowledges that: (i) pursuant to this Agreement the Borrowers desire to utilize their borrowing potential on a Consolidated basis to the same extent possible as if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of the Issuers Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is accepting both a condition precedent to the obligations of each Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to each Lender this Agreement; and (iv) the Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(b) Each Borrower shall be liable for all amounts due to the Administrative Agent and/or any Lender from any Borrower under this Agreement, regardless of which Borrower actually receives Loans, the benefit of any Letter of Credit Issuance or other extensions of credit hereunder (all such extensions of credit being, collectively, “Extensions of Credit”) or the amount of such Extensions of Credit received by any Borrower or the manner in which the Administrative Agent and/or such Lender accounts for such Extensions of Credit on its books and records (without limiting the foregoing, each Borrower shall be liable for Extensions of Credit made to each other Borrower). Each Borrower’s Obligation with respect to Extensions of Credit made to it, and each Borrower’s Obligations arising as a result of the joint and several liability hereunder in consideration of such Borrower hereunder, with respect to Extensions of Credit made to another Borrower hereunder, shall be separate and distinct obligations, but all such Obligations shall be primary obligations of such Borrower.
(c) Each Borrower’s Obligations arising as a result of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability of such Borrower hereunder with respect to Extensions of Credit made to another Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or enforceability, avoidance or subordination of the Obligations if any other Borrower or of any promissory note or other document evidencing all or any part of the Obligations of any other Borrower, (ii) the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent and/or any Lender with respect to any provisions of any instrument evidencing the Obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent and/or any Lender, (iv) the failure by the Administrative Agent and/or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations Obligations of each of them. Each any other Borrower, (v) the Administrative Agent’s and/or any Lender’s election, in any proceedings instituted under the Bankruptcy Code, of the Issuers jointly and severally hereby irrevocably and unconditionally acceptsapplication of Section 1111(b)(2) of the Bankruptcy Code, not merely (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Administrative Agent’s and/or any Lender’s claim(s) for the repayment of the Obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower (other than the indefeasible payment of the Obligations). With respect to each Borrower’s Obligations arising as a surety, but also as a co-debtor, result of the joint and several liability with the other Issuers of such Borrower hereunder with respect to Extensions of Credit made to any Borrower hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right to subrogation or any remedy which the Administrative Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent and/or any Lender to secure payment of the Obligations or any other liability of any other Borrower to the Administrative Agent and/or any Lender.
(d) Each Borrower agrees if such Borrower’s joint and performance several liability hereunder, or if any Liens securing such joint and several liability, would, but for the application of this sentence, be unenforceable under applicable law, such joint and several liability and each such Lien shall be valid and enforceable to the maximum extent that would not cause such joint and several liability or such Lien to be unenforceable under applicable law, and such joint and several liability and such Lien shall be deemed to have been automatically amended accordingly at all relevant times.
(e) Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent may proceed directly and at once, without notice, against a Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent shall be under no obligation to marshal any assets in favor of such Borrower or against or in payment of any or all of the Obligations.
(f) The Borrowers are obligated to repay the Obligations as joint and several obligors under this Agreement. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Extensions of Credit made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s “Allocable Amount” (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the Obligations arising Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (i) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (ii) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (iii) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification and reimbursement under this Agreement and Section shall be subordinate in right of payment to the other Loan Documents, it being the intention prior payment in full of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assetsObligations. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents10.20 shall, to the extent the Obligations of expressly inconsistent with any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that provision in any Loan Party is deemed to be a surety or guarantor of any other Loan PartyDocument, each supersede such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)inconsistent provision.
Appears in 1 contract
Sources: Amendment Agreement (Tousa Inc)
Joint and Several Liability. (a) Each of the Issuers Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of the undertakings of each of the Issuers Borrowers to accept joint and several liability for the obligations of each of them. .
(b) Each of the Issuers jointly and severally Borrowers hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrower with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Issuers Borrowers without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Issuers Borrower will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. obligation.
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 2.19 constitute full recourse obligations of such IssuerBorrower, enforceable against it 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 herein, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement) or of any demand for any payment under this Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Agreement), notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the 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 the Lenders in respect of any of the Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Lender, 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 2.19, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.19, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any Borrower or any Lender. The joint and several liability of the 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 Borrower or any Lender.
(f) The provisions of this Section 1.4 2.19 are made for the benefit of the Purchasers Administrative Agent, the L/C Issuer, the Swing Line Lender and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against any of the Issuers Borrowers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers Lender first to marshal any of its claims or to exercise any of its rights against any of the other Issuers Borrowers or to exhaust any remedies available to it against any of the other Issuers Borrowers 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 1.4 2.19 shall remain in effect until all of the Obligations hereunder shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lenders upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 2.19 will forthwith be reinstated and in effect as though such payment had not been made. .
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Loan DocumentsDocument, to the extent the Obligations obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any applicable Lawstate law or any Debtor Relief Laws.
(h) The Borrowers hereby agree as among themselves that, in connection with payments made hereunder, each such Person shall have a right of contribution from each other Borrower in accordance with applicable Laws. To Such contribution rights shall be subordinate and subject in right of payment to the extent that Obligations until such time as the Obligations have been irrevocably paid in full and the Revolving Commitments relating thereto shall have expired or been terminated, and none of the Borrowers shall exercise any Loan Party is deemed to be a surety such contribution rights until the Obligations have been irrevocably paid in full and the Revolving Commitments relating thereto shall have expired or guarantor of been terminated.
(i) Notwithstanding anything in this Agreement or any other Loan PartyDocument to the contrary, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may no Foreign Borrower shall be available to it under applicable law (other than payment in full liable for the Obligations of the Obligations)Parent Borrower.
Appears in 1 contract
Joint and Several Liability. Each of the Issuers Issuer is accepting joint and several liability hereunder and under the other Note Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Issuer and in consideration of the undertakings of each of the other Issuers to accept joint and several liability for the obligations of each of themObligations. Each of the Issuers Issuer, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Issuers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Agreement and the other Loan DocumentsSection 12.15), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers Issuer without preferences or distinction among them. If and to the extent that any of the Issuers Issuer shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement Obligation until such time as all of the Purchasers have been indefeasibly Obligations are paid in full and all Obligations under this Agreement have been terminatedfull. The obligations Obligations of each Issuer under the provisions of this Section 1.4 12.15 constitute the absolute and unconditional, full recourse obligations Obligations of such Issuer, each Issuer enforceable against it each Issuer to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement (other than this Section 12.15(d)) or any other circumstances whatsoever. Except as otherwise expressly provided in this Agreement, each Issuer hereby waives notice of acceptance of its joint and several liability, notice of any Notes issued under or pursuant to this Agreement, notice of the occurrence of any default, any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Note Agent or the Purchasers under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the 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 Issuer hereby assents to, and waives notice of, 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 Note Agent or the Purchasers at any time or times in respect of any default by any Issuer in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Note Agent or the Purchasers 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 Issuer. Without limiting the generality of the foregoing, each Issuer assents to any other action or delay in acting or failure to act on the part of Note Agent or any Issuer with respect to the failure by any Issuer 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 12.15 afford grounds for terminating, discharging or relieving any Issuer, in whole or in part, from any of its Obligations under this Section 12.15, it being the intention of each Issuer that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Issuer under this Section 12.15 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Issuer under this Section 12.15 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Issuer or Note Agent or any Issuer. Each Issuer represents and warrants to Note Agent and the Issuers that such Issuer is currently informed of the financial condition of the Issuers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Issuer further represents and warrants to Note Agent and the Purchasers that such Issuer has read and understands the terms and conditions of the this Agreement and the other Note Documents. Each Issuer hereby covenants that such Issuer will continue to keep informed of the Issuers’ financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations. The provisions of this Section 1.4 12.15 are made for the benefit of the Purchasers Note Agent, each Purchaser, and their respective successors and assigns, and may be enforced by it or them from time to time against any of the or all Issuers as often as occasion therefor may arise and without requirement on the part of Note Agent, any Purchaser, or any of the Purchasers their successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against the other Issuers any Issuer or to exhaust any remedies available to it or them against the other Issuers any Issuer 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 1.4 12.15 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Note Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the IssuersIssuer, or otherwise, the provisions of this Section 1.4 12.15 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding Each Issuer hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against any other Issuer with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Note Documents, any payments made by it to Note Agent or the Purchasers 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 in cash. Any claim which any Issuer may have against any other Issuer with respect to any payments to Note Agent or any Purchaser are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the extent prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of the Issuers any jurisdiction relating to any Issuer, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be adjudicated to be invalid paid in full in cash before any payment or unenforceable for any reason (including, without limitation, because distribution of any applicable Laws relating character, whether in cash, securities or other property, shall be made to fraudulent conveyances any other Issuer therefor. Each Issuer hereby agrees that after the occurrence and during the continuance of any default or transfers) then the Obligations Event of Default, such Issuer hereunder shall be limited will not demand, ▇▇▇ for or otherwise attempt to the maximum amount that is permissible under applicable Law. To the extent that collect any Loan Party is deemed to be a surety or guarantor indebtedness of any other Loan Party, each Issuer owing to such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Issuer until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Issuer shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Issuer as trustee for Note Agent, and such Issuer shall deliver any such amounts to Note Agent for application to the Obligations)Obligations in accordance with Section 2.5.
Appears in 1 contract
Sources: Note Purchase and Security Agreement (Comverge, Inc.)
Joint and Several Liability. (a) Each of the Issuers Borrowers is accepting joint and several liability for all of the obligations arising hereunder or under any of the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Bank under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of the undertakings of each of the Issuers other Borrower to accept joint and several liability for the Borrowers' obligations arising hereunder or under any of each of them. the other Loan Documents.
(b) Each of the Issuers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrower with respect to the payment and performance of all of the Obligations Borrowers' obligations arising hereunder or under any of the other Loan Documents (including, without limitation, any obligations arising under this Agreement and the other Loan DocumentsSection 11), it being the intention of the parties hereto that all of the Obligations obligations arising hereunder or under any of the other Loan Documents shall be the joint and several obligations of each of the Issuers Borrowers without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations obligations arising hereunder or under any of the other Loan Documents as and when due or to perform any of the Obligations obligations arising hereunder or under any of the other Loan Documents in accordance with the terms thereof, then in each such event, event the other Issuers Borrower will make such payment with respect to, or perform, such Obligation. Each obligation.
(d) The obligations arising hereunder or under any of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations Loan Documents of each Issuer of the Borrowers under the provisions of this Section 1.4 11 constitute full recourse obligations of each such Issuer, Borrower enforceable against it each such Borrower to the full extent of its properties and assets. The provisions , to the fullest extent permitted by applicable law, irrespective of the validity, regularity or enforceability of this Section 1.4 are made for the benefit Loan Agreement against any other Borrower or any other circumstance whatsoever.
(e) Each of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort Borrower with respect to any other source or means of obtaining payment of any of the Obligations liability incurred by it hereunder or to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in under any of the other Loan Documents, any payments made by it to the extent the Obligations of Bank with respect to any of the Issuers shall be adjudicated obligations hereunder or under any of the other Loan Documents until such time as all of the obligations hereunder or under any of the other Loan Documents have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited payments to the maximum amount that is permissible Bank hereunder or under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan PartyDocument are hereby expressly made subordinate and junior in right of payment, each such Loan Party hereby waives and all defenses without limitation as to suretyship and guarantee which may be available any increases in the obligations arising hereunder or thereunder, to it under applicable law (other than the prior payment in full of the Obligations)obligations hereunder or under any of the other Loan Documents and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such obligations arising hereunder or under any of the other Loan Documents 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.
Appears in 1 contract
Joint and Several Liability. Each of the Issuers Borrowers acknowledges that (i) it is accepting a co-borrower hereunder and shall be jointly and severally, with the other Borrower, directly and primarily liable for the Secured Obligations regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans or other extensions of credit received or the manner in which the Lender accounts for such Loans or other extensions of credit on its books and records, (ii) each of the Secured Obligations shall be secured by all of the Borrowers' collateral, (iii) each of the Borrowers shall have the obligations of co-maker and shall be primary obligors with respect to the Loans, the Notes, and the other Secured Obligations, it being agreed that the Loans to each Borrower inure to the benefit of both Borrowers, and (iv) the Lender is relying on such joint and several liability hereunder in consideration of the financial accommodation Borrowers as co-makers in extending the Loans and the other extensions of credit under the Loan Documents. Each Borrower's Secured Obligations with respect to be provided by the Purchasers under this AgreementLoans and other extensions of credit made to it, for the mutual benefit, directly and indirectly, of each Borrower's Secured Obligations arising as a result of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for of the Borrowers hereunder, with respect to Loans and other extensions of credit made to the other Borrower hereunder, shall be separate and distinct obligations, but all such Secured Obligations shall be primary obligations of each of themBorrower. Each of the Issuers jointly Borrower hereby unconditionally and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to agrees that upon default in the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due (whether at stated maturity, by acceleration or to perform otherwise) of any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect toprincipal of, or performinterest on, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement any Loan or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against Secured Obligation payable by it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assignsLender, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been madepay the same, without notice of demand. Notwithstanding any provision anything to the contrary contained herein in this Agreement, the Lender shall be entitled to rely upon any Loan Notice or in other request, notice or other communication received by it from any Borrower on behalf of the other Loan Documentsboth Borrowers, and shall be entitled to the extent the Obligations treat its giving of any of the Issuers shall be adjudicated notice hereunder pursuant to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating Section 15.02 hereof as notice to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Borrowers.
Appears in 1 contract
Sources: Credit Agreement (Capital Gold Corp)
Joint and Several Liability. Each Borrower hereby irrevocably and --------------------------- unconditionally:
(i) agrees that it is jointly and severally liable to the Lenders for the full and prompt payment of the Issuers is accepting joint Credit Obligations and several liability the performance by each Borrower of its obligations hereunder in consideration accordance with the terms of the financial accommodation Credit Documents; (ii) agrees to be provided fully and promptly perform all of its obligations under the Credit Documents with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify the Lenders on demand for and against any loss incurred by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, Lenders as a result of each any of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each any one or more of themthe Borrowers under the Credit Documents being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to the Lenders or any Person, the amount of such loss being the amount which the Lenders would otherwise have been entitled to recover from any one or more of the Borrowers. Each of the Issuers jointly and severally Borrower hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the each other Issuers Borrower with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among themCredit Obligations. If and to the extent that any of the Issuers shall fail Borrower fails to make any payment with respect to any of the Credit Obligations as and when due or to perform any of the Obligations its obligations in accordance with the terms thereofof the Credit Obligations, then in each such event, event the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)obligations.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Ch2m Hill Companies LTD)
Joint and Several Liability. (A) Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Agent and Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrowers to accept joint and several liability for the obligations of each of them. Obligations.
(B) Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Agreement and the other Loan DocumentsSubsection 10.23), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. .
(C) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all .
(D) The Obligations under this Agreement have been terminated. The obligations of each Issuer Borrower under the provisions of this Section 1.4 Subsection 10.23 constitute the absolute and unconditional, full recourse obligations Obligations of such Issuer, each Borrower enforceable against it each 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 Borrower hereby waives notice of acceptance of its joint and several liability, 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 the Agent or the Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the 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 Borrower hereby assents to, and waives notice of, 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 the Agent or the 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 the Agent or the 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 Borrower assents to any other action or delay in acting or failure to act on the part of the 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 Subsection 10.23 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Subsection 10.23, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Borrower under this Subsection 10.23 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this Subsection 10.23 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Agent or any Lender.
(F) Each Borrower represents and warrants to Agent and the Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Agent and the Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such 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 Obligations.
(G) Each Borrower waives all rights and defenses arising out of an election of remedies by the Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Agent’s or such Lender’s rights of subrogation and reimbursement against such Borrower.
(H) The provisions of this Section 1.4 Subsection 10.23 are made for the benefit of the Purchasers Agent, Lenders and their respective successors and permitted assigns, and may be enforced by it or them from time to time against any of the Issuers or all Loan Parties as often as occasion therefor may arise and without requirement on the part of the Agent, any of the Purchasers Lender, successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against the other Issuers any Borrower or to exhaust any remedies available to it or them against the other Issuers 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 1.4 Subsection 10.23 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Agent or any Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 Subsection 10.23 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(I) Each Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against any other Borrower with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Documents, any payments made by it to the extent Agent or the Obligations of Lenders with respect to any of the Issuers Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to any Agent or Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be adjudicated to be invalid paid in full in cash before any payment or unenforceable for any reason (including, without limitation, because distribution of any applicable Laws relating to fraudulent conveyances character, whether in cash, securities or transfers) then the Obligations of such Issuer hereunder other property, shall be limited made to any other Borrower therefor.
(J) Each Borrower hereby agrees that, after the occurrence and during the continuance of any Default or Event of Default, the payment of any amounts due with respect to the maximum amount indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that is permissible under applicable Law. To after the extent that occurrence and during the continuance of any Loan Party is deemed Default or Event of Default, such Borrower will not demand, ▇▇▇ for or otherwise attempt to be a surety or guarantor collect any indebtedness of any other Loan Party, each Borrower owing to such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for Agent, and such Borrower shall deliver any such amounts to Agent for application to the Obligations. Witness the due execution hereof by the respective duly authorized officers of the Obligations).undersigned as of the date first written above. By: _________________________________ Name: _________________________________ Title: _________________________________ By: _________________________________ Name: _________________________________ Title: _________________________________ THE F&M BANK & TRUST COMPANY, as Agent and sole Lender By: _________________________________ Name: _________________________________ Title: _________________________________ Revolving Loan Commitment: $2,000,000 Term Loan A Commitment: $2,000,000 Term Loan B Commitment $6,000,000
Appears in 1 contract
Sources: Loan and Security Agreement (Pizza Inn Holdings, Inc /Mo/)
Joint and Several Liability. Each of the Issuers Borrowers acknowledges that (i) it is accepting a co-borrower hereunder and shall be jointly and severally, with the other Borrower, directly and primarily liable for the Secured Obligations regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans or other extensions of credit received or the manner in which the Lender accounts for such Loans or other extensions of credit on its books and records, (ii) each of the Secured Obligations shall be secured by all of the Borrowers’ collateral, (iii) each of the Borrowers shall have the obligations of co-maker and shall be primary obligors with respect to the Loans, the Notes, and the other Secured Obligations, it being agreed that the Loans to each Borrower inure to the benefit of both Borrowers, and (iv) the Lender is relying on such joint and several liability hereunder in consideration of the financial accommodation Borrowers as co-makers in extending the Loans and the other extensions of credit under the Loan Documents. Each Borrower’s Secured Obligations with respect to be provided by the Purchasers under this AgreementLoans and other extensions of credit made to it, for the mutual benefit, directly and indirectly, of each Borrower’s Secured Obligations arising as a result of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for of the Borrowers hereunder, with respect to Loans and other extensions of credit made to the other Borrower hereunder, shall be separate and distinct obligations, but all such Secured Obligations shall be primary obligations of each of themBorrower. Each of the Issuers jointly Borrower hereby unconditionally and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to agrees that upon default in the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due (whether at stated maturity, by acceleration or to perform otherwise) of any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect toprincipal of, or performinterest on, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement any Loan or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against Secured Obligation payable by it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assignsLender, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been madepay the same, without notice of demand. Notwithstanding any provision anything to the contrary contained herein in this Agreement, the Lender shall be entitled to rely upon any Loan Notice or in other request, notice or other communication received by it from any Borrower on behalf of the other Loan Documentsboth Borrowers, and shall be entitled to the extent the Obligations treat its giving of any of the Issuers shall be adjudicated notice hereunder pursuant to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating Section 12.02 hereof as notice to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Borrowers.
Appears in 1 contract
Sources: Credit Agreement (Capital Gold Corp)
Joint and Several Liability. Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other documents entered into in connection with this Agreement (the “Loan Documents”) in consideration of the financial accommodation accommodations to be provided by the Purchasers Lender under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrower to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among themObligations. If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all The Obligations under this Agreement have been terminated. The obligations of each Issuer Borrower under the provisions of this Section 1.4 constitute O constitutes the absolute and unconditional, full recourse obligations Obligations of such Issuer, each Borrower enforceable against it each 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. Except as otherwise expressly provided in this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans issued under or pursuant to this Agreement, notice of the occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lender under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the 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 Borrower hereby assents to, and waives notice of, 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 the Lender 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 the Lender 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 Borrower assents to any other action or delay in acting or failure to act on the part of the 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 O afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section O, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Borrower under this Section O shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this Section O shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or the Lender. Each Borrower represents and warrants to the Lender that such ▇▇▇▇▇▇▇▇ 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 Borrower further represents and warrants to the Lender that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such 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 Obligations. Each Borrower waives all rights and defenses arising out of an election of remedies by the Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Lender’s rights of subrogation and reimbursement against such ▇▇▇▇▇▇▇▇. The provisions of this Section 1.4 O are made for the benefit of the Purchasers Lender and their its successors and assigns, and may be enforced by it or them from time to time against any of the Issuers Borrower as often as occasion therefor may arise and without requirement on the part of any of the Purchasers Lender, successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against the other Issuers any Borrower or to exhaust any remedies available to it or them against the other Issuers 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 1.4 O shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 O will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding Until the Obligations have been paid in full and this Agreement has been terminated, each Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against any other Borrower with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Documents, any payments made by it to the extent the Obligations of Lender with respect to any of the Issuers Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be adjudicated to be invalid paid in full in cash before any payment or unenforceable for any reason (including, without limitation, because distribution of any applicable Laws relating to fraudulent conveyances character, whether in cash, securities or transfers) then the Obligations of such Issuer hereunder other property, shall be limited made to any other Borrower therefor. Each Borrower hereby agrees that, after the occurrence and during the continuance of any default or Event of Default, the payment of any amounts due with respect to the maximum amount Debt owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that is permissible under applicable Law. To after the extent that occurrence and during the continuance of any Loan Party is deemed default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to be a surety or guarantor collect any Debt of any other Loan Party, each Borrower owing to such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Debt, such amounts shall be collected, enforced and received by such Borrower as trustee for Lender, and such Borrower shall deliver any such amounts to the Lender, for application to the Obligations).
Appears in 1 contract
Joint and Several Liability. (a) Each of the Issuers is accepting Borrower accepts joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Administrative Agent and the Lenders under this AgreementCredit Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrower to accept joint and several liability for the obligations of each of them. Borrower.
(b) Each of the Issuers Borrower shall be jointly and severally hereby irrevocably liable for all Obligations (whether or not borrowed by a Borrower), regardless of which Borrower actually receives Credit Extensions hereunder or the amount of such Credit Extensions received or the manner in which the Administrative Agent or any Lender accounts for such Credit Extensions on its books and unconditionally acceptsrecords. Each Borrower’s obligations with respect to Credit Extensions made to it, not merely and each Borrower’s obligations arising as a surety, but also as a co-debtor, result of the joint and several liability with the other Issuers of such Borrower hereunder, with respect to the payment Credit Extensions made to and performance of all of the other Obligations arising under this Agreement and owing by the other Loan DocumentsBorrowers hereunder, it being the intention of the parties hereto that all the Obligations shall be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrower.
(c) Each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Credit Extensions made to and other Obligations owing by the other Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or enforceability, avoidance or subordination of the obligations of each any other Borrower or of any promissory note or other document evidencing all or any part of the Issuers without preferences obligations of any other Borrower, (ii) the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or distinction among them. If and any other security therefor, or the absence of any other action to enforce the extent that same, (iii) the waiver, consent, extension, forbearance or granting of any of indulgence by the Issuers shall fail to make Administrative Agent or any payment Lender with respect to any provision of any instrument evidencing the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, made or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent or any Lender, (iv) the Administrative Agent’s or any Lender’s election, in respect any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (v) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code, (vi) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the obligations of any other Borrower under Section 502 of the Obligations is rescinded Bankruptcy Code, or must otherwise be restored (vii) any other circumstances which might constitute a legal or returned by the Purchasers upon the insolvency, bankruptcy equitable discharge or reorganization defense of a guarantor or of any other Borrower. With respect to each Borrower’s obligations arising as a result of the Issuersjoint and several liability of such Borrower hereunder with respect to Credit Extensions made to the other Borrowers hereunder, or otherwisesuch Borrower waives, until the provisions Obligations shall have been paid in full (excluding contingent indemnification obligations that shall survive the termination of this Section 1.4 will forthwith be reinstated Credit Agreement) and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of this Credit Agreement and the other Loan DocumentsDocuments shall have been terminated, any right to enforce any right of subrogation or any remedy which the extent the Obligations of Administrative Agent or any of the Issuers shall be adjudicated to be invalid Lender now has or unenforceable for may hereafter have against such Borrower and any reason (including, without limitation, because of endorser or any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of all or any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full part of the Obligations).
(d) Upon the occurrence and during the continuation of any Event of Default, the Administrative Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations.
Appears in 1 contract
Joint and Several Liability. Each Borrowers shall be liable for all amounts due to Lender under this Agreement, regardless of which Borrower actually receives the Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which Lender accounts for such Loans, Letter of Credit Accommodations or other extensions of credit on its books and records. The Obligations with respect to Loans made to a Borrower, and the Obligations arising as a result of the Issuers is accepting joint and several liability hereunder in consideration of a Borrower hereunder, with respect to Loans made to the other Borrower hereunder, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers. The Obligations arising as a result of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the payment and performance other Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (a) the validity or enforceability, avoidance or subordination of the Obligations arising under this Agreement and of the other Loan Documents, it being the intention Borrower or of any promissory note or other document evidencing all or any part of the parties hereto that all Obligations of the other Borrowers, (b) the absence of any attempt to collect the Obligations shall be from the joint and several obligations other Borrower, any Obligor or any other security therefor, or the absence of each any other action to enforce the same, (c) the waiver, consent, extension, forbearance or granting of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment indulgence by Lender with respect to any provisions of any instrument evidencing the Obligations of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, made or any other agreement now or hereafter executed by the other Borrower and delivered to Lender, (d) the failure by Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrower, (e) the election of Lender in respect any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (f) the disallowance of all or any portion of the claim(s) of Lender for the repayment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan DocumentsBorrower under Section 502 of the Bankruptcy Code, or (g) any other circumstances which might constitute a legal or equitable discharge or defense of any Obligor or of the other Borrower, other than the wilful misconduct, gross negligence or bad faith of Lender as determined pursuant to a final, non-appealable order of a court of competent jurisdiction. With respect to the extent Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrower hereunder, each Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any of the Issuers shall be adjudicated to be invalid remedy which Lender now has or unenforceable for may hereafter have against Borrowers, any reason (including, without limitation, because of endorser or any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of all or any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full part of the Obligations), and any benefit of, and any right to participate in, any security or collateral given to Lender. Upon any Event of Default and for so long as the same is continuing, Lender may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against the other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Lender shall be under no obligation to m▇▇▇▇▇▇▇ any assets in favor of Borrower(s) or against or in payment of any or all of the Obligations.
Appears in 1 contract
Sources: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Joint and Several Liability. Each of (a) The Borrowers are accepting the Issuers is accepting joint and several liability provided for hereunder in consideration of the financial accommodation accommodations provided and to be provided by the Purchasers Administrative Agent and Banks under this Agreement, Agreement for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of each of the undertakings of each of the Issuers Borrower herein to accept joint and several liability liability, for their mutual benefit, for the obligations of each of the other of them. Each of the Issuers .
(b) The Borrowers, jointly and severally as hereinafter described, hereby irrevocably and unconditionally acceptsaccept, not merely as a surety, surety but also as a co-debtordebtors, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising (including, without limitation, all indebtedness, liabilities and obligations under this Agreement Agreement, the Notes and the other Loan Documents), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of all the Issuers Borrowers without preferences preference or distinction among them. .
(c) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Obligations Obligations, as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event each of the other Issuers will Borrowers will, forthwith upon demand by the Administrative Agent, make such payment with respect to, or perform, such ObligationObligations pursuant to the terms hereof.
(d) Each Borrower hereby acknowledges and consents to all provisions of this Agreement. In connection with its obligations under this Section, except to the extent that notice is expressly required by this Agreement, each Borrower hereby waives notice of acceptance of the joint and several liability contained in this Section, notice of any loan or advance to any Borrower under this Agreement, notice of the occurrence of any Default or any Event of Default or of any demand upon any Borrower for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or any Bank under or in respect of this Agreement, the Notes or any other Loan Document and, generally, all demands, notices, protests and other formalities of every kind in connection with the joint and several liability contained in this Section and the other provisions of this Agreement. In connection with its obligations under this Section, each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the indebtedness, liabilities and obligations under this Agreement, the Notes and the other Loan Documents, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or any Bank 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, the Notes or any other Loan Document, any and all other indulgences whatsoever by the Administrative Agent or any Bank 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 Person or Persons primarily or secondarily liable in respect of any of the Obligations. Each of the Issuers further agrees that it shall have no Borrowers also waives: (I) any right to require the Administrative Agent or any Bank to (A) proceed against any other Person, including any other Borrower or any Guarantor, or (B) pursue any other remedy; and (II) any defense arising by reason of subrogation(A) any disability or other defense of any Borrower, indemnityany Guarantor or any other Person, reimbursement (B) the cessation from any cause whatsoever, other than payment or contribution against performance in full, of any of the Obligations of the Borrowers, any Guarantor or any other Issuers for amounts so paid under this Agreement until such time as Person, or (C) any act or omission by the Purchasers have been indefeasibly paid Administrative Agent or any Bank which directly or indirectly results in full and all or aids the discharge of any Borrower, any Guarantor or any Obligations under this Agreement have been terminatedby operation of law or otherwise. The obligations of each Issuer Borrower under this Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower, any Guarantor, the Administrative Agent or any Bank. The joint and several liability of each Borrower in this Section shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, charter, membership, constitution or place of formation of any Borrower, any Guarantor, the Administrative Agent or any Bank. Each of the Borrowers agrees that each of the waivers set forth above are made with such Borrower’s full knowledge of their significance and consequences, and such Borrower agrees that, under the provisions circumstances, the waivers are reasonable and not contrary to public policy or law. If any of this Section 1.4 constitute full recourse obligations of said waivers are determined to be contrary to any applicable law or public policy, such Issuer, enforceable against it waivers shall be effective only to the full extent of its properties and assets. permitted by law.
(e) The provisions of this Section 1.4 2.17 are made for the benefit of the Purchasers Administrative Agent and the Banks and their respective successors and assigns, and may be enforced by them the Administrative Agent from time to time against any of the Issuers Borrowers as often as occasion therefor therefore may arise and without requirement on the part of the Administrative Agent or any of the Purchasers Bank first to marshal any of its their claims or to exercise any of its their rights against the any other Issuers Borrower or to exhaust any remedies available to it the Administrative Agent or any Bank against the other Issuers Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder indebtedness, liabilities and obligations evidenced by or arising under this Agreement, the Note and the Loan Documents or to elect any other remedy. The provisions of this Section 1.4 2.17 shall remain in effect until all the Obligations indebtedness, liabilities and obligations evidenced by or arising under this Agreement, the Notes and the Loan Documents shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations indebtedness, liabilities and obligations evidenced by or arising under this Agreement, the Notes and the Loan Documents, is rescinded or must otherwise be restored or returned by the Purchasers Administrative Agent or any Bank upon the insolvency, Administrative Agent or any bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 2.17 will forthwith be reinstated and in effect effect, as though such payment had not been made. .
(f) Notwithstanding any provision to the contrary contained herein herein, in the Notes or in any other of the other Loan Documents, to the extent the Obligations joint obligations of any of the Issuers Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws state or federal law relating to fraudulent conveyances or transfers) then the Obligations obligations of such Issuer each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable Law. To law (whether federal or state and including, without limitation, the extent federal Bankruptcy Code).
(g) Without limiting in anyway the foregoing and notwithstanding anything to the contrary contained herein or in any Letter of Credit Agreement, the Borrowers hereby acknowledge and agree that any Loan Party is they shall be obligated, jointly and severally, to reimburse the applicable Issuing Bank upon each Letter of Credit Advance and it shall be deemed to be a surety or guarantor obligated in respect of each such Letter of Credit issued hereunder (whether the account party on such letter of credit is any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the ObligationsBorrower or Guarantor).
Appears in 1 contract
Joint and Several Liability. Each (a) Notwithstanding any other provision of this Agreement (but subject to Section 1.6), the Borrowers shall be jointly and severally liable as primary obligors, and not merely as sureties, for any and all Obligations now or hereafter owed to the Administrative Agent, the Swing Line Lender and the Lenders, whether voluntary or involuntary and however arising, whether direct or acquired by any Lender by assignment or succession, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined (such Obligations, the “Borrowers’ Liabilities”). Any request or notice delivered by any Borrower to the Administrative Agent, the Swing Line Lender or any other Lender hereunder or under any other Loan Document (including any Notice of Borrowing) shall be deemed a request or notice delivered and authorized by all of the Issuers is accepting joint and several liability Loan Parties. Any request or notice delivered to any Loan Party hereunder in consideration or under any other Loan Document shall be deemed to have been delivered to all of the financial accommodation Loan Parties hereunder. Each Loan Party hereby irrevocably appoints each other Loan Party as its agent hereunder and under the other Loan Documents for all purposes, including for giving and receiving requests and notices (including any Notice of Borrowing). Neither the Administrative Agent, the Swing Line Lender nor any other Lender shall be responsible for, or have any duty to be provided inquire as to or monitor, which Loan Party uses any advance hereunder requested by the Purchasers under any Borrower or other Loan Party.
(b) Each Loan Party expressly waives any and all defenses now or hereafter arising or asserted by reason of (i) any lack of legality, validity or enforceability of this Agreement, for the mutual benefitof any other Loan Document, directly and indirectlyor of any other agreement or instrument creating, providing security for, or otherwise relating to Loans, Obligations or any guaranty of each any of the Issuers Borrowers’ Liabilities (the Loan Documents and in consideration all such other agreements and instruments being collectively referred to as the “Related Agreements”); (ii) any action taken under any of the undertakings Related Agreements, any exercise of each any right or power therein conferred, any failure or omission to enforce any right conferred thereby, or any waiver of any covenant or condition therein provided; (iii) any acceleration of the Issuers to accept joint and several liability for the obligations maturity of each of them. Each any of the Issuers jointly and severally hereby irrevocably and unconditionally acceptsBorrowers’ Liabilities or of any other obligations or liabilities of any Person under any of the Related Agreements; (iv) any release, not merely as exchange, non-perfection, lapse in perfection, disposal, deterioration in value, or impairment of any security for any of the Borrowers’ Liabilities, or for any other obligations or liabilities of any Person under any of the Related Agreements; (v) any dissolution of any Loan Party or any other party to a suretyRelated Agreement, but also as or the combination or consolidation of any Loan Party or any other party to a co-debtorRelated Agreement into or with another entity or any transfer or disposition of any assets of any Loan Party or any other party to a Related Agreement; (vi) any extension (including extensions of time for payment), joint and several liability with renewal, amendment, restructuring or restatement of, any acceptance of late or partial payments under, or any change in the amount of any borrowings or any credit facilities available under, this Agreement or any other Issuers with respect Loan Document or any other Related Agreement, in whole or in part; (vii) the existence, addition, modification, termination, reduction or impairment of value, or release of any other guaranty (or security therefor) of the Borrowers’ Liabilities; (viii) any waiver of, forbearance or indulgence under, or other consent to any change in or departure from any term or provision contained in this Agreement, any other Loan Document or any other Related Agreement, including any term pertaining to the payment and or performance of all any of the Obligations arising under this Agreement Borrowers’ Liabilities, or any of the obligations or liabilities of any party to any other Related Agreement; and (ix) any other circumstance whatsoever (with or without notice to or knowledge of any Loan Party) which may or might in any manner or to any extent vary the risks of such Loan Party, or might otherwise constitute a legal or equitable defense available to, or discharge of, a surety or a guarantor, including any right to require or claim that resort be had to any Loan Party or any other Loan Documents, it being Person or to any collateral in respect of the intention Borrowers’ Liabilities (other than payment or performance). It is the express purpose and intent of the parties hereto that all the Obligations shall be the joint and several liability of each Borrower for the Borrowers’ Liabilities, and the obligations of the Guarantors under the Loan Documents, shall be absolute and unconditional under any and all circumstances and shall not be discharged except by payment as herein provided. Notwithstanding the foregoing, the liability of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment Borrower with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder Borrowers’ Liabilities shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable Law. To Section 548 of the extent that Bankruptcy Code of the United States or any Loan Party is deemed to be a surety or guarantor comparable provisions of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)state law.
Appears in 1 contract
Joint and Several Liability. Each In consideration of the Issuers establishment of the Purchaser agreeing to advance the Loans pursuant to the terms of this Agreement, and of the benefits that each of the Company and the Surviving Company (individually a “Obligor” and collectively, the “Obligors”) anticipates to result therefrom, the Obligors agree that, notwithstanding any other provision contained herein or in the other Loan Documents, the Obligors shall be fully liable for all of the obligations hereunder and under the other Loan Documents, both severally and jointly, regardless of whether an ▇▇▇▇▇▇▇ actually receives the proceeds of the Loans. Accordingly, each Obligor irrevocably agrees with the Purchaser that they will make prompt payment in full when due (whether at stated maturity, by acceleration, by optional prepayment or otherwise) of the obligations evidenced by the Notes or arising hereunder or under any other Loan Document, strictly in accordance with the terms hereof and thereof. Each Obligor hereby further agrees that if any Obligor shall fail to pay in full in cash when due (whether at stated maturity, by acceleration, by optional prepayment or otherwise) any of such obligations, then they will promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any such obligations, the same will be promptly paid in full in cash when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal. The obligations of each Obligor under this Section 8.18 are absolute and unconditional irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of any other Obligor under this Agreement or any other Loan Document, or any substitution, release or exchange of any other guarantee of or security for any of such obligations, and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 8.18 that the joint and several obligations of the Obligors hereunder shall be absolute and unconditional under any and all circumstances. Without limiting the generality of the foregoing, it is accepting agreed that the joint and several liability hereunder in consideration of the financial accommodation to Obligors shall remain absolute, irrevocable and unconditional under any and all circumstances and shall not be provided affected by the Purchasers occurrence of any one or more of the following: (x) at any time or from time to time, without notice to the Obligors, the time for any performance of or compliance with any of the obligations hereunder or under the Notes shall be extended, or such performance or compliance shall be waived; (y) the maturity of any such obligations shall be accelerated or delayed, or any of such obligations shall be modified, supplemented or amended in any respect, or any right or obligation under this AgreementAgreement or any other agreement or instrument referred to herein shall be waived or any other guarantee of any of such obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with or (z) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of an Obligor. All rights, for the mutual benefit, directly and indirectlyif any, of each any Obligor against the other Obligor arising by way of the Issuers and subrogation or otherwise in consideration connection with any payment of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect Obligor under this Agreement or any other Loan Document shall in all respects be irrevocably waived prior to the payment and performance in full in cash of all of the Obligations arising obligations under the Notes, this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Triller Corp.)
Joint and Several Liability. (a) Each of the Issuers is accepting Borrower accepts joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrower to accept joint and several liability for the obligations of each of them. Borrower.
(b) Each of the Issuers Borrower shall be jointly and severally hereby irrevocably liable for all Obligations, regardless of which Borrower actually receives the Advances hereunder or the amount of the Obligations received or the manner in which any Agent or any Lender accounts for the Obligations on its books and unconditionally acceptsrecords. Each Borrower’s obligations with respect to Advances made to it, not merely and each Borrower’s obligations arising as a surety, but also as a co-debtor, result of the joint and several liability with the other Issuers of such Borrower hereunder, with respect to Advances made to and other Obligations owing by the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsBorrowers hereunder, it being the intention of the parties hereto that all the Obligations shall be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrower.
(c) Each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Advances and other Obligations owing by the Borrowers hereunder shall, in each case, to the fullest extent permitted by law, be unconditional irrespective of (A) the validity or enforceability, avoidance or subordination of the obligations of each any other Borrower or of any promissory note or other document evidencing all or any part of the Issuers without preferences obligations of any other Borrower, (B) the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or distinction among them. If and any other security therefor, or the absence of any other action to enforce the extent that same, (C) the waiver, consent, extension, forbearance or granting of any of the Issuers shall fail to make indulgence by any payment Agent or any Lender with respect to any provision of any instrument evidencing the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, made in respect or any other agreement now or hereafter executed by any other Borrower and delivered to any Agent or any Lender, (D) the failure by any Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Borrower, (E) any Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or similar provision under any other applicable debtor relief law, (F) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code or similar provision under any other applicable debtor relief law, (G) the disallowance of all or any portion of any Lender’s claim(s) for the repayment of the obligations of any other Borrower under Section 502 of the Bankruptcy Code or similar provision under any other applicable debtor relief law, or (H) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower (other than the defense of payment). With respect to each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Advances made to the Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which the Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to any Agent or any Lender to secure payment of the Obligations is rescinded or must any other liability of any Borrower to any Agent or any Lender.
(d) Upon the occurrence and during the continuation of any Event of Default, any Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations without first proceeding against any other Borrower or any other Person, or against any security or collateral for the applicable Obligations. Each Borrower consents and agrees that the Agents and the Lenders shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the applicable Obligations.
(e) In any action or proceeding involving any state corporate, limited partnership or limited liability company law, or any applicable debtor relief law or other law affecting the rights of creditors generally, if the obligations of any Borrower hereunder would otherwise be restored held or returned by determined to be void, voidable, invalid or unenforceable, or subordinated to the Purchasers upon the insolvency, bankruptcy or reorganization claims of any other creditors, on account of the Issuersamount of its liability hereunder, or otherwisethen, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding notwithstanding any other provision to the contrary contained herein contrary, the amount of such liability shall, without any further action by such Borrower or in any of the other Loan DocumentsPerson, be automatically limited and reduced to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum highest amount that is permissible under applicable Law. To valid and enforceable and not subordinated to the extent that any Loan Party is deemed to be a surety claims of other creditors as determined in such action or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)proceeding.
Appears in 1 contract
Sources: Margin Loan Agreement (Blackstone Holdings III L.P.)
Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to All Borrowers shall be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably liable for all amounts due to Agent and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising Lenders under this Agreement and the other Loan Documents, it being regardless of which Borrower actually receives the intention Loans or Letter of Credit Outstandings hereunder or the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations amount of such Issuer, enforceable against it to Loans received or the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain manner in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, which Agent or any part thereofLender accounts for such Loans, made in respect Letter of any Credit Outstandings or other extensions of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated credit on its books and in effect as though such payment had not been maderecords. Notwithstanding any provision to the contrary contained All references herein or in any of the other Loan DocumentsDocuments to any of the obligation of Borrowers to make any payment hereunder or thereunder shall constitute joint and several obligations of Borrowers. The Obligations with respect to Loans made to a Borrower, and the Obligations arising as a result of the joint and several liability of a Borrower hereunder, with respect to Loans made to the other Borrowers, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers. The Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Outstandings or other extensions of credit made to the other Borrowers shall, to the fullest extent permitted by law, be unconditional irrespective of (a) the validity or enforceability, avoidance or subordination of the Obligations of any of the Issuers shall be adjudicated to be invalid other Borrowers or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances promissory note or transfers) then other document evidencing all or any part of the Obligations of such Issuer hereunder shall be limited the other Borrowers, (b) the absence of any attempt to collect the maximum amount that is permissible under applicable Law. To Obligations from the extent that other Borrowers, any Loan Party is deemed to be a surety Guarantor or guarantor any other security therefor, or the absence of any other Loan Partyaction to enforce the same, (c) the waiver, consent, extension, forbearance or granting of any indulgence by Agent or any Lender with respect to any provisions of any instrument evidencing the Obligations of the other Borrowers, or any part thereof, or any other agreement now or hereafter executed by the other Borrowers and delivered to Agent or any Lender, (d) the failure by Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrowers, (e) the election of Agent and Lenders in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (f) the disallowance of all or any portion of the claim(s) of Agent or any Lender for the repayment of the Obligations of the other Borrowers under Section 502 of the Bankruptcy Code, or (g) any other circumstances which might constitute a legal or equitable discharge or defense of a Guarantor or of the other Borrowers other than the gross negligence or willful misconduct of Agent or a Lender as determined pursuant to a final non-appealable order of a court of competent jurisdiction. With respect to the Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Outstandings or other extensions of credit made to the other Borrowers hereunder, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which Agent or any Lender now has or may hereafter have against any Borrower or Guarantor and any benefit of, and any right to participate in, any security or collateral given to Agent or any Lender. Upon any Event of Default, and for so long as such Event of Default is continuing, Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations), without first proceeding against the other Borrowers or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Agent and Lenders shall be under no obligation to ▇▇▇▇▇▇▇▇ any assets in favor of Borrowers or against or in payment of any or all of the Obligations. Each Borrower shall have a right of contribution against the other Borrowers to the extent payments made by such Borrower exceed the amount of Credit Extensions and related Obligations directly obtained by such Borrower.
Appears in 1 contract
Joint and Several Liability. Each All obligations of Borrower under this Agreement shall be joint and several, and all references to Borrower shall mean each and every Borrower. This means that each Borrower signing below is responsible for all obligations in this Agreement. Where anyone or more of the Issuers parties is accepting joint and several a corporation, partnership, limited liability hereunder in consideration company or similar entity, it is not necessary for Lender to inquire into the powers of any of the financial accommodation officers, directors, partners, members, or other agents acting or purporting to act on the entity's behalf. and any obligations made or created in reliance upon the professed exercise of such powers shall be provided by the Purchasers guaranteed under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers . No Waiver by ▇▇▇▇▇▇. Lender shall not be deemed to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising have waived any rights under this Agreement unless such waiver is given in writing and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences signed by ▇▇▇▇▇▇. No delay or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement omission on the part of Lender in exercising any right shall operate as a waiver of the Purchasers first to marshal any of its claims such right or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source right. A waiver by ▇▇▇▇▇▇ of a provision of this Agreement shall not prejudice or means constitute a waiver of obtaining payment Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by ▇▇▇▇▇▇. nor any course of dealing between ▇▇▇▇▇▇ and Borrower, or between Lender and any Grantor, shall constitute a waiver of any of the Obligations hereunder Lender's rights or to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of Loan No: 2000206013 Borrower's or any Grantor's obligations as to any future transactions. Whenever the Obligations consent of Lender is rescinded or must otherwise be restored or returned required under this Agreement. the granting of such consent by the Purchasers upon the insolvency, bankruptcy or reorganization of Lender in any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated instance shall not constitute continuing consent to subsequent instances where such consent is required and in effect as though all cases such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which consent may be available to it under applicable law (other than payment granted or withheld in full the sole discretion of the Obligations)Lender.
Appears in 1 contract
Joint and Several Liability. Each Notwithstanding any other provision of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreement, each Borrower shall be jointly and severally liable as a primary obligor, and not merely as surety, for any and all Obligations now or hereafter owed by any Borrower to the mutual Administrative Agent, the L/C Issuer and the Lenders, whether voluntary or involuntary and however arising, whether direct or acquired by any Lender by assignment or succession, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether any Borrower may be liable individually or jointly with others, or whether recovery upon such Obligations may be or hereafter become barred by any statute of limitations, or whether such Obligations may be or hereafter become otherwise unenforceable (such Obligations, the “Borrowers’ Liabilities”). Moreover, for valuable consideration, each Borrower unconditionally guarantees and promises to pay to Administrative Agent, on behalf of itself and the Lenders, as and when due, in lawful money of the United States, any and all of the Borrowers’ Liabilities. Notwithstanding the foregoing (or any designation made pursuant to Section 2.20(d)), the liability of each Borrower individually (other than Invesco Finance US and Invesco Finance UK, for which this sentence shall not apply) with respect to its Borrowers’ Liabilities shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the United States Bankruptcy Code or any comparable provisions of any applicable state law.
(a) The guaranty of each Borrower hereunder shall be a continuing guaranty relating to any Borrowers’ Liabilities, including those arising under successive transactions which shall either continue Obligations or from time to time renew any Obligations after such Obligations shall have been satisfied. Any payment by any Borrower shall not reduce the Borrowers’ maximum obligation hereunder. The guaranty of each Borrower hereunder is a guaranty of payment and not of collection.
(b) The Obligations of each Borrower are independent, and a separate action or actions may be brought and prosecuted against one Borrower whether action is brought against any other Borrower or whether any other Borrower is joined in any such action or actions; and each Borrower waives the benefit of any statute of limitations affecting its liability hereunder.
(c) Each Borrower agrees that neither the Administrative Agent nor any Lender shall have any responsibility to inquire into the apportionment, allocation or disposition of the proceeds of any Credit Extension as between the Borrowers, and acknowledges that its liability hereunder shall not be reduced or diminished by such Borrower, the Administrative Agent or any other Borrower giving or receiving of notices and other communications, making requests for, or effecting conversions or continuations of, Loans or Letters of Credit, executing and delivering certificates, or receiving or allocating disbursements from the Lenders. Each Borrower acknowledges that the handling of any Advances, Letters of Credit or other Obligations made hereunder or under any other Loan Document on a joint borrowing basis as set forth in this Agreement is solely an accommodation to the Borrowers and is done at their request. Each Borrower agrees that no Lender nor the Administrative Agent nor the L/C Issuer shall incur any liability to such Borrower as a result of such accommodation.
(d) Each Borrower represents and warrants to the Administrative Agent and the Lenders that the request for any joint handling of any Advances, Letters of Credit or other Obligations made hereunder or under any other Loan Document was made because the Borrowers are engaged in related operations and are interdependent. Each Borrower expects to derive benefit, directly and or indirectly, from the availability of each Advance, Letter of Credit or other Obligation because the successful operation of each Borrower is dependent on the continued successful performance of the Issuers and in consideration functions of the undertakings Borrowers as a group.
(e) Each Borrower represents and warrants to the Administrative Agent and the Lenders that (i) it has established adequate means of each obtaining from any other Borrower on a continuing basis financial and other information pertaining to the business, operations and condition (financial and otherwise) of any other Borrower and its respective property, and (ii) it now is and hereafter will be completely familiar with the business, operations and condition (financial and otherwise) of any other Borrower, and its property. Each Borrower hereby waives and relinquishes any duty on the part of the Issuers Administrative Agent to accept joint disclose to such Borrower any matter, fact or thing relating to the business, operations or condition (financial or otherwise) of any other Borrower, or the property of any other Borrower, whether now or hereafter known by the Administrative Agent or any Lender during the term of this Agreement.
(f) Each Borrower expressly waives any right to require the Administrative Agent and several liability for the Lenders to marshal assets in favor of any Borrower or any other Person or to proceed against any other Borrower or any other Person or any collateral provided by any other Borrower or any other Person, and agrees that the Administrative Agent and the Lenders may proceed against any Borrower and/or collateral in such order as they shall determine in their sole and absolute discretion. The Administrative Agent and the Lenders may file a separate action or actions against any Borrower, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that the Administrative Agent and the Lenders and any other Borrower may deal with each other in connection with the Obligations, the Borrowers’ Liabilities or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the obligations of each such Borrower under the Loan Documents.
(g) Each Borrower expressly waives any and all defenses now or hereafter arising or asserted by reason of them. Each (i) any disability or other defense of the Issuers jointly and severally hereby irrevocably and unconditionally acceptsany other Borrower, not merely as a surety, but also as a co-debtor, joint and several liability with the any Guarantor or any other Issuers Person with respect to any Obligations, (ii) the unenforceability or invalidity as to any other Borrower, any Guarantor or any other Person of the Obligations, (iii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iv) the cessation for any cause whatsoever of the liability of any Borrower, any Guarantor or any other Person (other than by reason of the full payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsObligations), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and (v) to the extent that permitted by law, any failure of the Issuers shall fail Administrative Agent and the Lenders to make give notice of sale or other disposition to any payment Borrower, any Guarantor or any other Person or any defect in any notice that may be given in connection with any sale or disposition, (vi) to the extent permitted by law, any failure of the Administrative Agent and the Lenders to comply with applicable laws in connection with the sale or other disposition of any collateral or other security for any Obligation, including without limitation any failure of the Administrative Agent and the Lenders to conduct a commercially reasonable sale or other disposition of any collateral or other security for any obligation, (vii) any act or omission of the Administrative Agent and the Lenders, that directly or indirectly results in or aids the discharge or release of any Borrower or any Guarantor or the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation, (ix) any failure of the Administrative Agent and the Lenders to file or enforce a claim in any bankruptcy or other proceeding with respect to any other Borrower, any Guarantor or any other Person, (x) the election by the Administrative Agent and the Lenders, in any bankruptcy proceeding of any other Borrower or any Guarantor, of the Obligations application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any Lien under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code in connection with the bankruptcy of any other Borrower or any Guarantor, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, or (xiii) any agreement or stipulation with any other Borrower or any Guarantor with respect to the provision of adequate protection in any bankruptcy proceeding of any Person.
(h) Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which any Borrower is a party, each Borrower hereby waives, so long as any Lender shall have any Commitment hereunder, any Advance or other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit or other L/C Obligation shall remain outstanding, with respect to any other Borrower and when due its successors and assigns (including any surety) and all rights at law or in equity to subrogation, to reimbursement, to exoneration, to contribution, to setoff or to perform any other rights that could accrue to a surety against a principal, to a guarantor against a maker, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which any Borrower may have or hereafter acquire against any other Borrower or any other Person in connection with or as a result of the Obligations execution, delivery and/or performance of this Agreement or any other Loan Document. Each Borrower agrees that, so long as any Lender shall have any Commitment hereunder, any Advance or other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit or other L/C Obligation shall remain outstanding, it shall not have or assert any such rights against any other Borrower or its successors and assigns or any other party (including any surety), either directly or as an attempted setoff to any action commenced against any Borrower by any other Borrower (as borrower or in accordance with any other capacity) or any other party. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the terms thereofAdministrative Agent and the Lenders and shall not limit or otherwise affect Borrowers’ liability hereunder, then in each such event, the under any other Issuers will make such payment with respect toLoan Document to which any Borrower is a party, or performthe enforceability hereof or thereof.
(i) Any obligations of any Borrower or any Guarantor to any other Borrower, such Obligation. Each now or hereafter existing, including but not limited to any obligations to any Borrower or any Guarantor as subrogee of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement Administrative Agent and the Lenders or contribution against the other Issuers for amounts so paid resulting from any Borrower’s performance under this Agreement until such time as guaranty, are hereby subordinated to the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminatedBorrowers’ Liabilities. The Such obligations of each Issuer under any Borrower or a Guarantor to any other Borrower, if the provisions of this Section 1.4 constitute full recourse obligations of Administrative Agent so requests, shall be enforced, and performance received by such IssuerBorrower or such Guarantor as trustee for the Administrative Agent and the Lenders, enforceable against it and the proceeds thereof shall be paid over to the full extent of its properties and assets. The provisions of this Section 1.4 are made Administrative Agent for the benefit of the Purchasers Administrative Agent and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement Lenders on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining payment of any account of the Obligations hereunder of the Borrowers to the Administrative Agent and the Lenders, but without reducing or to elect affecting in any manner the liability of any Borrower under the other remedy. The provisions of this the guaranty contained herein.
(j) Each Borrower irrevocably appoints IVZ (or, in the event IVZ is no longer a Borrower hereunder pursuant to (and in accordance with) Section 1.4 shall remain 2.20, such other Person appointed by the Borrowers in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymenta Notice of Borrower Assumption delivered pursuant to Section 2.20(d), or any part thereofin the event that there is only one Borrower hereunder, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwisesuch Borrower, the provisions of "Borrower Agent") as its agent for all purposes relevant to this Section 1.4 will forthwith be reinstated Agreement and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any each of the other Loan Documents, including (i) the giving and receipt of all notices (including any Notice of Borrowing) and any Issuer Document, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, (iii) the receipt of the proceeds of any Advances made by the Lenders to any Borrower hereunder, and (iv) for receiving service of process. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by any or each Borrower acting singly, shall be valid and effective if given or taken only by the Borrower Agent, whether or not any Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication received from the Borrower Agent in accordance with the terms of this Agreement or any other Loan Document shall be deemed to have been received from each Borrower (to the extent delivery by such Borrower is required by or appropriate under the Obligations terms of this Agreement). Any notice, demand, consent, acknowledgement, direction, certification or other communication required to be delivered by any Lender, the Administrative Agent or the L/C Issuer to any Borrower, or the Borrowers collectively, shall be deemed to have been so delivered if delivered to the Borrower Agent, and any proceeds of any of Advances made by the Issuers Lenders to be made available to any Borrower shall be adjudicated deemed to have been made available to such Borrower if made available to the Borrower Agent.
(k) Notwithstanding anything to the contrary contained herein, to the extent this Agreement requires payment of an amount by “each Borrower”, “the Borrowers” or “any Borrower”, such payment shall be invalid or unenforceable for any reason (includingmade by the Borrowers, jointly and severally, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)duplication.
Appears in 1 contract
Sources: Credit Agreement (Invesco Ltd.)
Joint and Several Liability. (a) Each of the Issuers Borrowers acknowledges and agrees that (i) it is accepting a co-borrower hereunder and shall be jointly and severally, with the other Borrower, directly and primarily liable for the Obligations regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans or other extensions of credit received or the manner in which the Administrative Agent, the Letter of Credit Issuer and/or any Lender accounts for such Loans or other extensions of credit on its books and records, (ii) each of the Borrowers shall have the obligations of co-maker and shall be primary obligors with respect to all Loans, the Notes, the Letters of Credit and the other Obligations, it being agreed that such extensions of credit to each Borrower inure to the benefit of both Borrowers, and (iii) the Administrative Agent, the Letter of Credit Issuer and each of the Lenders is relying on such joint and several liability hereunder in consideration of the financial accommodation Borrowers as co-makers in extending the Loans and issuing the Letters of Credit hereunder. Each Borrower’s obligations with respect to be provided by the Purchasers under this AgreementLoans made to it or with respect to any Letters of Credit issued for its account, for the mutual benefit, directly and indirectly, of each Borrower’s obligations arising as a result of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability of the Borrowers hereunder, with respect to Loans made to the other Borrower hereunder or with respect to any Letters of Credit issued for the account of the other Borrower hereunder, shall be separate and distinct obligations, but all such Obligations shall be primary obligations of each of themBorrower. Each Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, by acceleration or otherwise) of any Obligation payable to the Administrative Agent, the Letter of Credit Issuer or any Lender, each such Borrower will forthwith pay the same, without notice of demand.
(b) Each Borrower’s obligations arising as a result of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with of the other Issuers Borrowers hereunder with respect to Obligations of the payment and performance other Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (i) the validity or enforceability, avoidance or subordination of the Obligations of the other Borrower or of any Note or other document evidencing all or any part of the Obligations of the other Borrower, (ii) the absence of any attempt to collect the Obligations from the other Borrower, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent, the Letter of Credit Issuer or any Lender with respect to any provision of any instrument evidencing the Obligations of the other Borrower, or any part thereof, or any other agreement now or hereafter executed by the other Borrower and delivered to the Administrative Agent, the Letter of Credit Issuer or any Lender, (iv) the failure by the Administrative Agent, the Letter of Credit Issuer or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security for the Obligations of the other Borrower, (v) any borrowing or grant of a security interest by the other Borrower, as debtors-in-possession under Section 364 of the Bankruptcy Code, (vi) the disallowance of all or any portion of the Administrative Agent’s, the Letter of Credit Issuer’s or any Lender’s claim(s) for the repayment of the Obligations of the other Borrower under Section 502 of the Bankruptcy Code, or (vii) any other circumstances which might constitute a legal or equitable discharge or defense of the other Borrower.
(c) With respect to each Borrower’s obligations arising under as a result of the joint and several liability of the Borrowers hereunder with respect to Obligations any of the other Borrower hereunder, each Borrower waives, until the Obligations shall have been paid in full in cash and this Agreement and the other Loan DocumentsDocuments shall have terminated, it being any right to enforce any right of subrogation or any remedy which the intention Administrative Agent, the Letter of Credit Issuer or any Lender now has or may hereafter have against the other Borrower, any endorser or any guarantor of all or any part of the parties hereto that all Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent, the Letter of Credit Issuer or any Lender to secure payment of the Obligations.
(d) No payment or payments made by either of the Borrowers or any other Person or received or collected by the Administrative Agent, the Letter of Credit Issuer or any Lender from either of the Borrowers or any other Person by virtue of any action or proceeding or any set-off-or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and deemed (except to the extent that any Obligations are satisfied) to modify, release or otherwise affect the liability of the Issuers each Borrower under this Agreement, which shall fail to make any payment with respect to any of remain liable for the Obligations as and when due or to perform any of until the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly are paid in full in cash and all Obligations under this Agreement have been is terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 1 contract
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Credit Parties under this Agreement, Credit Agreement for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrowers to accept joint and several liability for the obligations of each of them. Loan Document Obligations.
(b) Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrowers, with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsDocument Obligations, it being the intention of the parties hereto that all of the Loan Document Obligations shall be the joint and several obligations of each of the Issuers Borrower without preferences or distinction among them. Accordingly, each Borrower hereby waives any and all suretyship defenses that would otherwise be available to such Borrower under applicable law.
(c) If and to the extent that any of the Issuers Borrower shall fail to make any payment with respect to any of the Loan Document Obligations as and when due due, whether upon maturity, acceleration, or otherwise, or to perform any of the Loan Document Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement Loan Document Obligations until such time as all of the Purchasers have been indefeasibly Loan Document Obligations are paid in full and all Obligations under this Agreement have been terminated. full, and, except as otherwise expressly provided in the Loan Documents, without the need for demand, protest, or any other notice or formality.
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 2.12 constitute the absolute and unconditional, full recourse obligations of such Issuer, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Credit Agreement or any other Loan Document or any other circumstance whatsoever.
(e) Each Borrower hereby waives, for the benefit of the Credit Parties: (a) any right to require any Credit Party, as a condition of payment or performance by such Borrower, to (i) proceed against any other Borrower, any Guarantor or any other Person, (ii) proceed against or exhaust any security held from any other Borrower, any Guarantor or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of any Credit Party in favor of any other Borrower, any Guarantor or any other Person, or (iv) pursue any other remedy in the power of any Credit Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of any other Borrower or any Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Loan Document Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any other Borrower or any Guarantor from any cause other than payment in full of the Loan Document Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Credit Party’s errors or omissions in the administration of the Loan Document Obligations (other than those constituting gross negligence, bad faith or willful misconduct); (e)
(i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Borrower’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Borrower’s liability hereunder or the enforcement hereof, (iii) any rights to set offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Credit Party protect, secure, perfect or insure any security interest or Lien or any property subject thereto; (f) except as otherwise expressly provided in the Loan Documents, notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default, notices of any renewal, extension or modification of the Loan Document Obligations or any agreement related thereto, notices of any extension of credit to such Borrower and any right to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the ability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.
(f) Each Borrower represents and warrants to the Credit Parties that such B▇▇▇▇▇▇▇ is currently informed of the financial condition of the other Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Loan Document Obligations. Each Borrower further represents and warrants to the Credit Parties that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of each other Borrower’s financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Loan Document Obligations.
(g) The provisions of this Section 1.4 2.12 are made for the benefit of the Purchasers each Credit Party and their its successors and permitted assigns, and may be enforced by it or them from time to time against any of the Issuers or all Borrowers as often as occasion therefor may arise and without requirement on the part of any Credit Party of the Purchasers any of its successors or permitted assigns first to marshal any of its or their claims or to exercise any of its or their rights against the other Issuers any Borrower or any Guarantor or to exhaust any remedies available to it or them against the other Issuers any Borrower or any Guarantor or to resort to any other source or means of obtaining payment of any of the Loan Document Obligations hereunder or to elect any other remedy. The provisions of this Section 1.4 2.12 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfiedoccurrence of the Termination Date. If at any time, time any payment, or any part thereof, made in respect of any of the Loan Document Obligations is rescinded or must otherwise be restored or returned by the Purchasers any Credit Party upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 2.12 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(h) Each Borrower hereby agrees that it will not enforce any of its rights that arise from the existence, payment, performance or enforcement of the provisions of this Section 2.12, including rights of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Credit Party against any Borrower, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until the Termination Date has occurred (subject, however, to the last sentence of this paragraph). Any claim which any Borrower may have against any other Borrower with respect to any payments to any Credit Party hereunder are hereby expressly made subordinate and junior in right of payment to the prior occurrence of the Termination Date and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, the Termination Date shall occur before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of the Credit Parties, and shall forthwith be paid to Administrative Agent to be credited and applied to the Loan Document Obligations and all other amounts payable under this Credit Agreement, whether matured or unmatured, in accordance with the terms of this Credit Agreement, or to be held as Collateral for any Loan Document Obligations or other amounts payable under this Credit Agreement thereafter arising. Notwithstanding any provision anything to the contrary contained herein in this Credit Agreement, no Loan Party may exercise any rights of subrogation, reimbursement, exoneration, contribution, indemnification or in similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, any other Loan Party (the “Foreclosed Loan Party”), including after the Termination Date, if all or any portion of the other Secured Obligations have been satisfied in connection with an exercise of remedies of the Equity Interests of such Foreclosed Loan DocumentsParty, whether pursuant to this Credit Agreement or otherwise.
(i) The provisions of this Section 2.12 shall not apply to any liability to the extent that it would result in this guarantee granted by any UK Subsidiary constituting unlawful financial assistance within the Obligations meaning of any sections 678 or 679 of the Issuers shall be adjudicated to be invalid or unenforceable for any reason Companies Act 2006 (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the ObligationsUK).
Appears in 1 contract
Joint and Several Liability. Each All obligations of Borrower and Grantor under this Agreement shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means that each Borrower and Grantor signing below is responsible for all obligations in this Agreement. Where any one or more of the Issuers is accepting joint and several parties Is s corporation, partnership, limited liability hereunder in consideration company or similar entity, It Is not necessary for Lender to Inquire Into the powers of any of the financial accommodation officers, directors, partners, members, or other agents acting or purporting to act on the entity’s behalf, and any obligations made or created in reliance upon the professed exercise of such powers shall be provided guaranteed under this Agreement. No Waiver by Lander. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver Is given in writing and signed by Lender, No delay or omission on the Purchasers part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender’s rights or of any of Grantor’s obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, for the mutual benefit, directly and indirectly, granting of each of the Issuers such consent by Lender in any instance shall not constitute continuing consent to subsequent Instances where such consent is required and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each cases such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and consent may be enforced by them from time to time against any granted or withhold in the sole discretion of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Lender.
Appears in 1 contract
Sources: Promissory Note
Joint and Several Liability. Each All obligations of Borrower under this Agreement shall be joint and several, and all references to Borrower shall mean each and every Borrower. This means that each Borrower signing below is responsible for a!! obligations in this Agreement. Where any one or more of the Issuers parties is accepting joint and several a corporation, partnership, limited liability hereunder in consideration company or similar entity, it is not necessary for Lender to inquire into the powers of any of the financial accommodation officers, directors, partners, members, or other agents acting or purporting to act on the entity's behalf, and any obligations made or created in reliance upon the professed exercise of such powers shall be provided guaranteed under this Agreement. No Waiver by Lender. Lender shaH not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. No delay or omission on the Purchasers part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Borrower, or between Lender and any Granter, sha!I constitute a waiver of any of Lender's rights or of any of Loan No: 18172001 Page 6 Borrower's or any Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, for the mutual benefit, directly and indirectly, granting of each of the Issuers such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each cases such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and consent may be enforced by them from time to time against any granted or withheld in the sole discretion of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Lender.
Appears in 1 contract
Sources: Business Loan Agreement (Asset Based) (Addvantage Technologies Group Inc)
Joint and Several Liability. (a) Each of the Issuers Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of the undertakings of each of the Issuers Borrowers to accept joint and several liability for the obligations of each of them. .
(b) Each of the Issuers jointly and severally Borrowers hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrowers with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Issuers Borrowers without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Issuers Borrowers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. obligation.
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 2.19 constitute full recourse obligations of such IssuerBorrower, enforceable against it 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 herein, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement) or of any demand for any payment under this Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Agreement), notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the 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 the Lenders in respect of any of the Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Lenders, 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 2.19, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.19, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any Borrower or any Lender. The joint and several liability of the 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 Borrower or any Lender.
(f) The provisions of this Section 1.4 2.19 are made for the benefit of the Purchasers Administrative Agent, the L/C Issuer, the Swing Line Lender, the Alternative Currency Fronting Lender (as applicable) and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against any of the Issuers Borrowers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers Lender first to marshal any of its claims or to exercise any of its rights against any of the other Issuers Borrowers or to exhaust any remedies available to it against any of the other Issuers Borrowers 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 1.4 2.19 shall remain in effect until all of the Obligations hereunder shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lenders upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 2.19 will forthwith be reinstated and in effect as though such payment had not been made. .
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Loan DocumentsDocument, to the extent the Obligations obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any applicable Lawstate law or any Debtor Relief Laws.
(h) The Borrowers hereby agree as among themselves that, in connection with payments made hereunder, each such Person shall have a right of contribution from each other Borrower in accordance with applicable Laws. To Such contribution rights shall be subordinate and subject in right of payment to the extent that Obligations until such time as the Obligations have been irrevocably paid in full and the Commitments relating thereto shall have expired or been terminated, and none of the Borrowers shall exercise any Loan Party is deemed to be a surety such contribution rights until the Obligations have been irrevocably paid in full and the Commitments relating thereto shall have expired or guarantor of been terminated.
(i) Notwithstanding anything in this Agreement or any other Loan PartyDocument to the contrary, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may no Foreign Borrower shall be available to it under applicable law (other than payment in full liable for the Obligations of the Obligations)Parent Borrower.
Appears in 1 contract
Joint and Several Liability. Each (a) The liability and obligations of each Borrower for payment and performance of the Issuers Liabilities to the Lender under this Agreement or under any of the Financing Agreements to which the Borrower is accepting a party shall be joint and several. Such joint and several liability hereunder in consideration of the financial accommodation Borrower shall to be provided the fullest extent permitted by law remain and exist regardless of which Borrower actually receives loans or other extensions of credit hereunder or the Purchasers under this Agreementamount of such loans received or the manner in which Lender accounts for such loans or other extensions of credit on its books and records. Each Borrower’s Liabilities with respect to loans made to it and related fees, for the mutual benefitcosts and expenses, directly and indirectly, of each Borrower’s Liabilities arising as a result of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for of the obligations Borrowers hereunder, with respect to loans made to the other Borrower hereunder together with the related fees, costs and expenses, shall be separate and distinct Liabilities, all of which are primary Liabilities of each of themBorrower. Each Borrower’s Liabilities arising as a result of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with of the other Issuers Borrowers hereunder with respect to loans or other extensions of credit made to the payment and performance other Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity, enforceability, avoidance or subordination of the Liabilities of the other Borrower or of any promissory note or other document evidencing all of any part of the Obligations arising under this Agreement and Liabilities of the other Loan DocumentsBorrower, it being (ii) the intention absence of any attempt to collect the parties hereto that all Liabilities from the Obligations shall be other Borrower, any other guarantor, or any other security therefor, or the joint and several obligations absence of each any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment indulgence by Lender with respect to any provision of any instrument evidencing the Liabilities of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, or any other agreement now or hereafter executed by the other Borrower and delivered to the Lender, (iv) the failure by the Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Liabilities of the other Borrower, (v) the Lender’s election, in any proceeding instituted under the U.S. Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by the other Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Lender’s claims for repayment of the Liabilities of the other Borrower under Section 502 of the Bankruptcy Code, or (viii) any other circumstance which might constitute a legal or equitable discharge or defense of a guarantor of the other Borrower. With respect to each Borrower’s Liabilities arising as a result of the joint and several liability of the Borrowers hereunder with respect to loans or other extensions of credit made to the other Borrower hereunder, such Borrower waives, until the Liabilities shall have been paid in respect full and this Agreement shall have been terminated in accordance with its terms, any right to enforce any right of subrogation or any remedy which Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Liabilities, and any benefit of, and any right to participate in, any security or collateral given to Lender to secure payment of the Liabilities or any other liability of the Borrower to the Lender, whether any such right arises by way of suretyship or otherwise.
(b) Any term or provision of this Agreement or any other Financing Agreement to the contrary notwithstanding, the maximum aggregate amount of the Liabilities for which any of the Obligations is rescinded Borrowers (which Liabilities are not direct borrowings or must otherwise be restored or returned by direct obligations of such Borrower (the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers “Non-Direct Obligations”)) shall be adjudicated liable shall not exceed the maximum amount for which such Borrower can be liable without rendering such Non-Direct Obligations, as they relate to be invalid or unenforceable for any reason (includingsuch Borrower, without limitation, because of any voidable under applicable Laws law relating to fraudulent conveyances conveyance or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Lawfraudulent transfer. To the extent that any Loan Party is deemed Borrower shall be required hereunder to be pay a surety or guarantor portion of its Non-Direct Obligations which shall exceed the greater of (i) the amount of the economic benefit actually received by such Borrower from any of the loans evidenced hereby in respect of such Non-Direct Obligations, and (ii) the amount which such Borrower would otherwise have paid if such Borrower had paid the aggregate amount of the Non-Direct Obligations of such Borrower (excluding the amount thereof repaid by the other Borrower) in the same proportion as such Borrower’s net worth at the date of any other Loan Party, each such Loan Party hereby waives and applicable borrowing hereunder is sought bears to the aggregate net worth of all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Borrowers at the date of such applicable borrowing hereunder is sought, then such Borrower shall be reimbursed by the other Borrower for the amount of such excess, pro rata based on the respective net worths of the Borrowers at the date of such applicable borrowing with respect hereto is sought.
(c) Except as expressly provided in Section 9.12 hereof, the term “Borrower” as used herein shall mean collectively, Therapy and Hospice, and individually, Therapy and Hospice, as the Lender shall determine in its sole and absolute discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Tandem Health Care, Inc.)
Joint and Several Liability. Each Borrowers shall be liable for all amounts due to Agent and Lenders under this Agreement, regardless of which Borrower actually receives the Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which Lender accounts for such Loans, Letter of Credit Accommodations or other extensions of credit on its books and records. The Obligations with respect to Loans made to a Borrower, and the Obligations arising as a result of the Issuers is accepting joint and several liability hereunder in consideration of a Borrower hereunder, with respect to Loans made to the other Borrower hereunder, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of both Borrowers. The Obligations arising as a result of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the payment and performance other Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of all (a) the validity or enforceability, avoidance or subordination of the Obligations arising under this Agreement and of the other Loan Documents, it being the intention Borrower or of any promissory note or other document evidencing all or any part of the parties hereto that all Obligations of the other Borrower, (b) the absence of any attempt to collect the Obligations shall be from the joint and several obligations other Borrower or any other security therefor, or the absence of each any other action to enforce the same, (c) the waiver, consent, extension, forbearance or granting of the Issuers without preferences any indulgence by Agent or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment Lender with respect to any provisions of any instrument evidencing the Obligations of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, made or any other agreement now or hereafter executed by the other Borrower and delivered to Agent or any Lender, (d) the failure by Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrower, (e) the election of Agent in respect any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (f) any borrowings or grant or a security interest by the other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, (g) the disallowance of all or any portion of the claim(s) of Agent for the repayment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan DocumentsBorrower under Section 502 of the Bankruptcy Code, or (h) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of the other Borrower. With respect to the extent Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrower hereunder, each Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any of the Issuers shall be adjudicated to be invalid remedy which Agent or unenforceable for any reason (includingLender now has or may hereafter have against Borrowers, without limitation, because of any applicable Laws relating to fraudulent conveyances endorser or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of all or any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to Agent or any Lender. Upon any Event of Default, Agent may proceed directly and at once, without notice (except as otherwise specifically provided for herein), against a Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against the other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Agent and Lenders shall be under no obligation to ▇▇▇▇▇▇▇▇ any assets in favor of Borrower(s) or against or in payment of any or all of the Obligations.
Appears in 1 contract
Sources: Loan and Security Agreement (Doe Run Resources Corp)
Joint and Several Liability. (a) Each of the Issuers parties undersigned as a Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Purchasers Lender under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers them and in consideration of the undertakings of each of the Issuers other to accept joint and several liability for the obligations of each of them. Obligations.
(b) Each of the Issuers parties undersigned as a Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers other, with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers Person composing a Borrower without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers parties undersigned as a Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Person composing a Borrower will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all .
(d) The Obligations under this Agreement have been terminated. The obligations of each Issuer Person composing a Borrower under the provisions of this Section 1.4 constitute the absolute and unconditional, full recourse obligations Obligations of such Issuer, each Person composing a Borrower enforceable against it each of the parties undersigned as a 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 Person composing a Borrower hereby waives notice of acceptance of its joint and several liability, notice of any advances 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 Lender under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the 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 Person composing a Borrower hereby assents to, and waives notice of, 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 Lender at any time or times in respect of any default by any Person composing a Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Lender 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 Person composing a Borrower. Without limiting the generality of the foregoing, each of the parties undersigned as a Borrower assents to any other action or delay in acting or failure to act on the part of Lender with respect to the failure by any Person composing a 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 afford grounds for terminating, discharging or relieving any Person composing a Borrower, in whole or in part, from any of its Obligations under this Section, it being the intention of each Person composing a Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Person composing a Borrower under this Section shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Person composing a Borrower under this Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Person composing a Borrower or Lender. The joint and several liability of the Persons composing a Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, constitution or place of formation of any of the Persons composing a Borrower or Lender.
(f) Each Person composing a Borrower represents and warrants to Lender and Lenders that it 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 Person composing a Borrower further represents and warrants to Lender that it has read and understands the terms and conditions of the Loan Documents. Each Person composing a Borrower hereby covenants that it will continue to keep informed of Borrowers' financial condition, the financial condition of guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.
(g) The provisions of this Section 1.4 are made for the benefit of the Purchasers Lender and their its respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Issuers Persons composing a Borrower as often as occasion therefor may arise and without requirement on the part of any of the Purchasers Lender, successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Issuers Persona composing a Borrower or to exhaust any remedies available to it or them against any of the other Issuers Persons composing a 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 1.4 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersPersons composing a Borrower, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(h) Each of the Persons composing a Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against the other Persons composing a Borrower with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Loan Documents, any payments made by it to the extent the Obligations of Lender with respect to any of the Issuers Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any of the parties undersigned as a Borrower may have against any other party with respect to any payments to Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any of the parties undersigned as a Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be adjudicated to be invalid paid in full in cash before any payment or unenforceable for any reason (including, without limitation, because distribution of any applicable Laws relating to fraudulent conveyances character, whether in cash, securities or transfers) then the Obligations of such Issuer hereunder other property, shall be limited made to any other of the parties undersigned as a Borrower therefor.
(i) Each of the Persons composing a Borrower hereby agrees that, after the occurrence and during the continuance of any Default or Event of Default, the payment of any amounts due with respect to the maximum amount indebtedness owing by any of the parties undersigned as a Borrower to any other party undersigned as a Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each of the parties undersigned as a Borrower hereby agrees that is permissible under applicable Law. To after the extent that occurrence and during the continuance of any Loan Party is deemed Default or Event of Default, it will not demand, s▇▇ for or otherwise attempt to be a surety or guarantor collect any indebtedness of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available of the parties undersigned as a Borrower owing to it under applicable law (other than payment until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, it shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by it as trustee for Lender, and it shall deliver any such amounts to Lender for application to the Obligations).
Appears in 1 contract
Sources: Loan and Security Agreement (Marine Growth Ventures Inc)
Joint and Several Liability. Each entity constituting Borrower hereby unconditionally and absolutely guarantees to and for the Lender the due performance, including without limitation the prompt payment when due or within any applicable grace period, whether at stated maturity, by acceleration or otherwise and at all times thereafter, of any and all Obligations of Borrower owed to the Lender irrespective of (a) any lack of enforceability of any Obligation, (b) any change of the Issuers is accepting joint and several liability hereunder in consideration time, manner, place of payment, or any other term of any Obligation, (c) any exchange, release or non-perfection of any collateral securing payment of any Obligation, (d) any law, regulation or order of any jurisdiction affecting the genuineness, validity, or rights of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers Lender with respect to the Obligations or any instruments evidencing any of the Obligations, or (e) any other circumstance which might otherwise constitute a defense to or discharge of an entity constituting Borrower. Each entity constituting Borrower agrees that its obligations hereunder are irrevocable; that a separate action or actions may be brought and prosecuted against it regardless of whether the other entity constituting Borrower is joined in any such action or actions; and that it waives the benefit of any statute of limitations affecting its liabilities hereunder or the enforcement hereof. Each entity constituting Borrower agrees that its obligations as a guarantor shall not be impaired, modified, changed, released, or limited in any manner whatsoever by any impairment, modification, change, release or limitation of the liability of the other's estate in bankruptcy, resulting from the operation of any present or future provision of the bankruptcy laws or other similar statute, or from the decision of any court in a bankruptcy proceeding. This is a continuing guarantee and shall remain in full force and effect and be binding upon each entity constituting Borrower, their respective successors and assigns until payment and performance in full of all of the Obligations arising under and no partial payment hereunder shall entitle either of them, by subrogation or otherwise, to any payment by the other out of its property. Each entity constituting Borrower hereby waives all notices of any character whatsoever with respect to this Agreement guarantee and the other Loan DocumentsObligations, it being the intention including but not limited to notice of the parties hereto that all acceptance hereof and reliance hereon, of the present existence or future incurring of any Obligations, of the amounts, terms and conditions thereof, and of any defaults thereon and further waives the defenses of diligence, presentment for payment, protest, demand or extensions of time for payment. Each entity constituting Borrower hereby consents to the taking of, or failure to take, from time to time without notice to it, any such action of any nature whatsoever with respect to the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any rights against any person or persons or in any property, including but not limited to any renewals, extensions, modifications, postponements, compromises, settlements, substitutions, refusals or failures to exercise or enforce, indulgences, waivers, surrenders, exchanges and releases, and each such entity will remain fully liable hereon notwithstanding any of the foregoing. Each entity constituting Borrower hereby waives the benefit of all laws now or hereafter in effect in any way limiting or restricting the liability of such entity hereunder, including without limitation (a) all defenses whatsoever to such entity's liability hereunder except the defense of payment made on account of the Obligations as to the Lender and when due such entity's liability hereunder; and (b) all right to stay of execution and exemption of property in any action to enforce the liability of such entity hereunder; and (c) all rights accorded such entity under any other statutory provisions of any other applicable jurisdiction affecting the rights of the Lender to enforce the obligations of such guarantee under this guarantee. Each entity constituting Borrower hereby consents and agrees that without further notice to or to perform assent from it, the time of payment of any or all of the Obligations in accordance with may be changed, any other term or condition relating to any or all of the terms thereof, then in each such eventObligations may be changed, the other Issuers will make such payment with respect to, entity constituting Borrower may be discharged from any or perform, such Obligation. Each all of the Issuers further agrees Obligations, any composition or settlement relating thereto may be consummated and accepted, and that it shall have no right of subrogation, indemnity, reimbursement such entity will remain bound upon this guarantee notwithstanding any or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement foregoing. No failure on the part of the Lender to exercise, and no delay in exercising, any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by the Lender of the Purchasers first to marshal any of its claims right, power or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to remedy preclude any other source further exercise thereof or means of obtaining payment the exercise of any of the Obligations hereunder other right, power or to elect any other remedy. The provisions of this Section 1.4 rights and remedies provided herein shall remain be in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect addition to and not exclusive of any of the Obligations is rescinded rights or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein remedies provided at law or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)equity.
Appears in 1 contract
Joint and Several Liability. Each of the Issuers Borrower hereby agrees that such Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally liable for, and hereby irrevocably absolutely and unconditionally acceptsguarantees to the Agent and Lenders and their respective successors and assigns, not merely as the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Agent and Lenders by each other Borrower. Although it is the express agreement and intent of Agent, Lenders and Borrowers that each Borrower is and shall be a surety, but also as a co-debtor, joint and several liability with the other Issuers primary obligor with respect to the payment obligations set forth herein and performance of all of not a guarantor, indemnitor, surety or otherwise only secondarily liable for such obligations, in the Obligations arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If event and to the extent that any the obligations of such Borrower undertaken herein might in the future be construed to consist, in whole or in part, of the Issuers guaranty of obligations of the other Borrower, each Borrower consents and agrees that such guaranty obligation (as the same may be construed) is and shall fail be a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 9.15 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 9.15 shall be absolute, unconditional and irrevocable, irrespective of, and unaffected by, (i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, any Obligation or any Loan Document, agreement, document or instrument to make which any payment Borrower is or may become a party; (ii) the absence of any action to enforce any Obligation or Loan Document or the waiver or consent by the Agent or any Lender with respect to any of the Obligations as and when due provisions governing any Obligation or to perform any of Loan Document; (iii) the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part insolvency of any of the Purchasers first to marshal any of its claims Borrower, Guarantor or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to Obligor; and (iv) any other source action or means circumstances that might otherwise constitute a legal or equitable discharge or defense of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Partyguarantor. Each Borrower shall be regarded, each such Loan Party hereby waives and all defenses shall be in the same position, as principal debtor with respect to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)Obligations guaranteed hereunder.
Appears in 1 contract
Sources: Revolving Credit Agreement (TNP Strategic Retail Trust, Inc.)
Joint and Several Liability. (a) Each of the Issuers is accepting Borrower accepts joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Administrative Agent and the Lenders under this AgreementCredit Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers Borrower to accept joint and several liability for the obligations of each of them. Borrower.
(b) Each of the Issuers Borrower shall be jointly and severally hereby irrevocably liable for all Obligations (whether or not borrowed by a Borrower), regardless of which Borrower actually receives Credit Extensions hereunder or the amount of such Credit Extensions received or the manner in which the Administrative Agent or any Lender accounts for such Credit Extensions on its books and unconditionally acceptsrecords. Each Borrower’s obligations with respect to Credit Extensions made to it, not merely and each Borrower’s obligations arising as a surety, but also as a co-debtor, result of the joint and several liability with the other Issuers of such Borrower hereunder, with respect to the payment Credit Extensions made to and performance of all of the other Obligations arising under this Agreement and owing by the other Loan DocumentsBorrowers hereunder, it being the intention of the parties hereto that all the Obligations shall be separate and distinct obligations, but all such obligations shall be primary obligations of each Borrower.
(c) Each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Credit Extensions made to and other Obligations owing by the other Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or enforceability, avoidance or subordination of the obligations of each any other Borrower or of any promissory note or other document evidencing all or any part of the Issuers without preferences obligations of any other Borrower, (ii) the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or distinction among them. If and any other security therefor, or the absence of any other action to enforce the extent that same, (iii) the waiver, consent, extension, forbearance or granting of any of indulgence by the Issuers shall fail to make Administrative Agent or any payment Lender with respect to any provision of any instrument evidencing the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereof, made in respect or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent or any Lender, (iv) the failure by the Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Borrower, (v) the Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to each Borrower’s obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Credit Extensions made to the other Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full (excluding contingent indemnification obligations that shall survive the termination of this Credit Agreement) and this Credit Agreement and the other Loan Documents shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization any other liability of any Borrower to the Administrative Agent or any Lender.
(d) Upon the occurrence and during the continuation of any Event of Default, the IssuersAdministrative Agent and the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full portion of the Obligations), without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations.
Appears in 1 contract
Joint and Several Liability. (a) Each of the Issuers Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrowers and in consideration of the undertakings of each of the Issuers Borrowers to accept joint and several liability for the obligations of each of them. .
(b) Each of the Issuers Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers Borrower with respect to the payment and performance of all of the Obligations arising under this Agreement and the other Loan DocumentsObligations, it being the intention of the parties hereto that all the such Obligations shall be the joint and several obligations of each of the Issuers Borrowers without preferences or distinction among them. .
(c) If and to the extent that any either of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers Borrower will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. .
(d) The obligations of each Issuer Borrower under the provisions of this Section 1.4 11.18 constitute full recourse obligations of such Issuerthe Borrowers, enforceable against it the Borrowers to the full extent of its their properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Lender 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 either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for the provisions of this Section 11.18, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 11.18, it being the intention of each Borrower that, so long as any of the Obligations remain unsatisfied, the obligations of such Borrower under this Section 11.18 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 11.18 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or any Lender. The joint and several liability of the 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 either Borrower or any Lender.
(f) The provisions of this Section 1.4 11.18 are made for the benefit of the Purchasers Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against any either of the Issuers Borrowers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers Lender first to marshal any of its claims or to exercise any of its rights against either of the other Issuers Borrowers or to exhaust any remedies available to it against the other Issuers 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 1.4 11.18 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Purchasers any Lender upon the insolvency, bankruptcy or reorganization of any either of the IssuersBorrowers, or otherwise, the provisions of this Section 1.4 11.18 will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 1 contract
Joint and Several Liability. Each of the Issuers Borrower acknowledges that it is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably liable for all of the Obligations and unconditionally accepts, not merely as a suretyresult hereby unconditionally guaranties the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all indebtedness, liabilities and obligations of every kind and nature of each other Borrower to Administrative Agent and Lenders and, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by Administrative Agent or any Lender. Each Borrower agrees that if this guaranty, or any Liens securing this guaranty, would, but also for the application of this sentence, be unenforceable under applicable law, this guaranty and each such Lien shall be valid and enforceable to the maximum extent that would not cause this guaranty or such Lien to be unenforceable under applicable law, and this guaranty shall automatically be deemed to have been amended accordingly at all relevant times. Each Borrower hereby agrees that its obligations under this guaranty shall be unconditional, irrespective of (a) the validity or enforceability of the Obligations or any part thereof, or of any promissory note or other document evidencing all or any part of the Obligations, (b) the absence of any attempt to collect the Obligations from any other Borrower or any guarantor or other action to enforce the same, (c) the waiver or consent by Administrative Agent or any Lender with respect to any provision of any agreement, instrument or document evidencing or securing all or any part of the Obligations, or any other agreement, instrument or document now or hereafter executed by any other Borrower and delivered to Administrative Agent or any Lender (other than a waiver, forgiveness or consent by Administrative Agent and Lenders that reduces the amount of any of the Obligations), (d) the failure by Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or Collateral for the Obligations, for its benefit, (e) Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of the application of Section 1111(b)(2) of the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (f) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (g) the disallowance, under Section 502 of the Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of all or any portion of Administrative Agent’s or any Lender’s claim(s) for repayment of the Obligations or (h) any other circumstance which might otherwise constitute a co-debtorlegal or equitable discharge or defense of a borrower or a guarantor. Each Borrower hereby waives diligence, joint and several liability presentment, demand of payment, filing of claims with a court in the other Issuers event of receivership or bankruptcy of any Borrower, protest or notice with respect to the Obligations and all demands whatsoever, and covenants that this guaranty will not be discharged, except by complete and irrevocable payment and performance of the Obligations. No notice to any Borrower or any other party shall be required for Administrative Agent or any Lender to make demand hereunder. Such demand shall constitute a mature and liquidated claim against the applicable Borrower. Upon the occurrence of any Event of Default, Administrative Agent or any Lender may, in its sole election, proceed directly and at once, without notice, against all or any Borrower to collect and recover the full amount or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or any security or collateral for the Obligations. During any period in which an Event of Default exists, each Borrower irrevocably waives the right to direct the application of any and all payments and collections at any time or times hereafter received by Administrative Agent from or on behalf of such Borrower, and each Borrower does hereby irrevocably agree that Administrative Agent shall have the continuing exclusive right to apply and reapply any and all such payments and collections received at any time or times hereafter by Administrative Agent or its agent against the Obligations, in such manner as Administrative Agent may deem advisable, notwithstanding any entry by Administrative Agent or any Lender upon any of its books and records. At any time after and during the continuance of an Event of Default, Administrative Agent and each Lender may, in its sole discretion, without notice to any Borrower and regardless of the acceptance of any collateral for the payment hereof, appropriate and apply toward payment of the Obligations arising (i) any indebtedness due or to become due from Administrative Agent or any Lender to such Borrower and (ii) any moneys, credits or other property belonging to such Borrower at any time held by or coming into the possession of Administrative Agent or any Lender or any Affiliates thereof, whether for deposit or otherwise. Notwithstanding anything to the contrary set forth in this Section 2.12, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by each Borrower to secure such Obligations), not constitute a fraudulent conveyance under Section 548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower, Administrative Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations Financing Documents shall automatically be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and deemed to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)amended accordingly.
Appears in 1 contract
Joint and Several Liability. Section 19.01. Each of the Issuers Borrower is accepting joint and several liability hereunder under this Agreement in consideration of the financial accommodation accommodations to be provided by the Purchasers Bank under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers Borrower and in consideration of the undertakings of each of the Issuers other Borrower to accept joint and several liability for the obligations Obligations of each of themBorrower to Bank.
Section 19.02. Each of the Issuers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtorco!debtor, joint and several liability with the each other Issuers Borrower, with respect to the payment and performance of all of the Obligations of each Borrower to Bank under this Agreement (including, without limitation, any Obligations arising under this Agreement and the other Loan Documentssection), it being the intention of the parties hereto that all the Obligations of each Borrower to Bank under this Agreement shall be the joint and several obligations Obligations of each of the Issuers Borrowers without preferences or distinction among them.
Section 19.03. If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations of each Borrower to Bank under this Agreement, as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, event the other Issuers Borrower, under this Agreement will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated.
Section 19.04. The obligations Obligations of each Issuer Borrower under the provisions of this Section 1.4 section constitute full recourse obligations Obligations of such Issuer, each Borrower enforceable against it each such Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstance whatsoever.
Section 19.05. Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any loans made under this Agreement, notice of any action at any time taken or omitted by Bank under or in respect of any of the Obligations of each Borrower to Bank under this Agreement, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations of each Borrower to Bank under this Agreement, the acceptance of any payment of any of such Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Bank 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 Bank in respect of any of the Obligations of each Borrower to Bank under this Agreement, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Obligations of each Borrower to Bank or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on Bank's part 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, afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this section, it being the intention of each Borrower that, so long as any of the Obligations under this Agreement remain unsatisfied, the Obligations of such Borrower under this section shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Borrower or Bank. The joint and several liability of each Borrower under this Agreement 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 Borrower or Bank.
Section 19.06. The provisions of this Section 1.4 section are made for the benefit of the Purchasers Bank and their Bank's successors and assigns, and may be enforced by them Bank in good faith from time to time against any or all of the Issuers Borrowers as often as occasion therefor may arise and without requirement on the Bank's part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers any Borrower or to exhaust any remedies available to it Bank against the any other Issuers Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder under this Agreement or to elect any other remedy. The provisions of this Section 1.4 section shall remain in effect until all of the Obligations of each Borrower to Bank under this Agreement shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the such Obligations of each Borrower to Bank, is rescinded or must otherwise be restored or returned by the Purchasers Bank upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 section will forthwith be reinstated and in effect effect, as though such payment had not been made.
Section 19.07. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Until all Obligations of Borrower to Bank are satisfied, each Borrower agrees that it shall not have, and hereby expressly waives: (i) any of the Issuers shall be adjudicated right to be invalid subrogation or unenforceable for indemnification, and any reason (includingother right to payment from or reimbursement by any other Borrower, without limitation, because in connection with or as a consequence of any applicable Laws relating payment made by any Borrower to fraudulent conveyances Bank, (ii) any right to enforce any right or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety remedy which Bank has or guarantor of may hereafter have against any other Loan PartyBorrower, and (iii) any benefit of, and any right to participate in (A) any collateral now or hereafter held by Bank, or (B) any payment to Bank by, or collection by Bank from any other Borrower. The provisions of this paragraph are made for the express benefit of each such Loan Party hereby waives Borrower as well as Bank, and all defenses to suretyship and guarantee which may be available enforced independently by each Borrower or any successor in interest to it under applicable law (other than payment in full of the Obligations)each Borrower.
Appears in 1 contract
Sources: Demand Loan and Security Agreement (Asa International LTD)
Joint and Several Liability. Each If there is more than one person signing this Note as Borrower, the liability of the Issuers is accepting each such person shall be joint and several liability hereunder several, and without limiting the operation or effect of any other provision of this Note each such person waives: (a) any right to require Lender to: (i) proceed against any other Obligor, (ii) proceed against any particular property or collateral given by any person to secure this Note; or (iii) notify such person of any default by any other person in consideration the payment of the financial accommodation to be provided by the Purchasers any amounts due under this Agreement, for Note or in the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all any other agreement of the Obligations any Obligor; and (b) any defense arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part reason of any of the Purchasers first to marshal following: (i) any disability or any counterclaim or right of its claims set-off or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any other source or means of obtaining payment defense of any Obligor, (ii) the invalidity, illegality or lack of enforceability of this Note or any provision thereof from any cause whatsoever, including any action or inaction by Lender, (iii) the failure of Lender to perfect or maintain perfection of any security interest in any property securing this Note, (iv) the cessation from any cause whatsoever of the Obligations hereunder liability of any Obligor, including the release by Lender of such Obligor's liability hereunder, (v) that this Note shall be void or to elect voidable as against any other remedy. The provisions Obligor or any Obligor's creditors, including a trustee in bankruptcy of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full any Obligor, by reason of any fact or circumstance, (vi) any event or circumstance which might otherwise fully satisfied. If at constitute a legal or equitable discharge of any time, any paymentObligor's obligations hereunder, or (viii) any part thereof, made act or omission of Lender (except acts or omissions in respect of any of bad faith) which changes the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations scope of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)person's risk hereunder.
Appears in 1 contract
Sources: Credit and Security Agreement (Rhythms Net Connections Inc)
Joint and Several Liability. Each of Parent, Subsidiary and any other Person named or identified as a Debtor under the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation Loan Documents from time to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally time hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint unconditionally: (i) agree that each is JOINTLY and several liability with SEVERALLY liable to Lender for the other Issuers with respect to the full and prompt payment and performance of all of the Obligations arising Indebtedness under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Issuers without preferences or distinction among them. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations Documents in accordance with the terms thereof, then in each such event, ; (ii) agree to fully and promptly perform all of their obligations hereunder and the other Issuers will make such payment Loan Documents with respect to, or perform, to each loan hereunder as if such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers loan had been made directly to it; and (iii) agree as a primary obligation to indemnify Lender on demand for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers loss incurred by Lender as often as occasion therefor may arise and without requirement on the part a result of any of the Purchasers first Indebtedness of Debtor being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to marshal Lender or any person, the amount of its claims such loss being the amount which Lender would otherwise have been entitled to recover from any one or to exercise any more of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to Parent, Subsidiary and any other source or means Person named as a Debtor under the Loan Documents from time to time. Debtor hereby designates Parent as its representative and agent on its behalf for the purposes of obtaining payment of any giving instructions with respect to the disbursement of the Obligations proceeds of the loans, selecting interest rate options, giving and receiving all other notices and consents hereunder or to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants) on behalf of Debtor under the Loan Documents. Parent hereby accepts such appointment. Lender may regard any notice or other communication pursuant to any Loan Document from Parent as a notice or communication from Debtor. Each warranty, covenant, agreement and undertaking made on behalf of Debtor by Parent shall be deemed for all purposes to have been made by Debtor and shall be binding upon and enforceable against Debtor to the same extent as it if the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (includingsame had been made directly by Debtor. LOAN AND SECURITY AGREEMENT – PAGE 4 THERMO CREDIT, without limitationLLC – ATSI COMMUNICATIONS, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations)INC.
Appears in 1 contract
Sources: Loan and Security Agreement (Atsi Communications Inc/De)
Joint and Several Liability. (a) Each of the Issuers Borrower is accepting joint and several liability hereunder under this Agreement and the Master Note in consideration of the financial accommodation accommodations to be provided by Lender a joinder to the Purchasers under this Agreementnew Amended and Restated Master Note and Amended and Restated Term Note (the “Notes”).
(b) Each Borrower, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Issuers each Borrower, with respect to the payment and performance of all of the Obligations arising Liabilities of each Borrower to Lender under this Agreement and the other Loan DocumentsNotes (including, without limitation, any Liabilities arising under this section), it being the intention of the parties hereto that all the Obligations Liabilities of each Borrower to Lender under this Agreement and the Notes shall be the joint and several obligations Liabilities of each of the Issuers Borrowers without preferences or distinction among them. .
(c) If and to the extent that any of the Issuers Borrowers shall fail to make any payment with respect to any of the Obligations Liabilities of each Borrower to Lender under this Agreement or the Notes, as and when due or to perform any of the Obligations such Liabilities in accordance with the terms thereof, then in each such event, event the other Issuers Borrower, under this Agreement or the Notes will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. Liabilities.
(d) The obligations Liabilities of each Issuer Borrower under the provisions of this Section 1.4 section constitute full recourse obligations Liabilities of such Issuer, each Borrower enforceable against it each such Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstance whatsoever.
(e) Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any loans made under this Agreement, notice of any action at any time taken or omitted by Lender under or in respect of any of the Liabilities of each Borrower to Lender under this Agreement and the Notes, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Liabilities of each Borrower to Lender under this Agreement and the Notes, the acceptance of any payment of any such Liabilities, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Lender 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 Lender in respect of any of the Liabilities of each Borrower to Lender under this Agreement and the Notes, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such Liabilities of each Borrower to Lender or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on Lender’s part with respect to the failure by any Borrower to comply with any of its respective Liabilities, 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, afford grounds for terminating, discharging or relieving any Borrower, in while or in part, from any of its Liabilities under this section, it being the intention of each Borrower that, so long as any of the Liabilities under this Agreement remain unsatisfied, the Liabilities of such Borrower under this section shall not be discharged except by performance and then only to the extent of such performance. The Liabilities of each Borrower under this section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement , liquidation, reconstruction or similar proceeding with respect to any other Borrower or Lender. The joint and several liability of each Borrower under this Agreement 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 Borrower or Lender.
(f) The provisions of this Section 1.4 section are made for the benefit of the Purchasers Lender and their Lender’s successors and assigns, and may be enforced by them Lender in good faith from time to time against any or all of the Issuers Borrowers as often as occasion therefor may arise and without requirement on the Lender’s part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers any Borrower or to exhaust any remedies available to it Lender against the any other Issuers Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder Liabilities under this Agreement or to elect any other remedy. The provisions of this Section 1.4 section shall remain in effect until all of the Obligations Liabilities of each Borrower to Lender under this Agreement and the Notes shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations such Liabilities of each Borrower to Lender, is rescinded or must otherwise be restored or returned by the Purchasers Lender upon the insolvency, bankruptcy or reorganization of any of the IssuersBorrower, or otherwise, the provisions of this Section 1.4 section will forthwith be reinstated and in effect effect, as though such payment had not been made. Notwithstanding .
(g) Until such time as all outstanding Liabilities are paid and discharged in full, each Borrower agrees that it shall not have, and hereby expressly waives: (i) any provision right to the contrary contained herein subrogation or indemnification, and any other right to payment from or reimbursement by any other Borrower, in any of the other Loan Documents, to the extent the Obligations connection with or as a consequence of any of the Issuers shall be adjudicated payment made by any Borrower to be invalid Lender, (ii) any right to enforce any right or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances remedy which Lender have or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of may hereafter have against any other Loan PartyBorrower, and (iii) any benefit of, and any right to participate in (A) any collateral now or hereafter held by Lender, or (B) any payment to Lender by, or collection by Lender from any other Borrower. The provisions of this paragraph are made for the express benefit of each such Loan Party hereby waives Borrower as well as Lender, and all defenses to suretyship and guarantee which may be available enforced independently by each Borrower or any successor in interest to it under applicable law (other than payment in full of the Obligations)each Borrower.
Appears in 1 contract
Joint and Several Liability. Each Subject to the terms of this Agreement, and without limitation of any obligation with respect to the Issuers Guaranty, it is accepting understood and agreed by the parties to this Agreement that each Borrower shall have joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the obligations of each of them. Each of the Issuers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all Obligations of the Obligations arising under all Borrowers. The Borrowers hereby acknowledge and agree that this Agreement and the other Loan DocumentsCredit Documents are an independent and several obligation of each Borrower (regardless of which Borrower shall have delivered a request for Borrowings) and may be enforced against each Borrower separately, it being the intention whether or not enforcement of any right or remedy hereunder has been sought against any other Borrower. Each Borrower hereby expressly waives, with respect to any Borrowing made to any other Borrower hereunder and any of the parties hereto amounts owing hereunder by any other Credit Party in respect of any Borrowing, diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that all any Secured Creditor exhaust any right, power or remedy or proceed against any other Credit Party under this Agreement, any other Credit Document or any other agreement or instrument referred to herein or against any other person under any other guarantee of, or security for, any of such amounts owing hereunder. In addition to the direct (and joint and several) obligations of the Borrowers with respect to the Obligations as described above, all such Obligations of the Borrowers shall be guaranteed pursuant to, and in accordance with the terms of, the Guaranty, subject to any applicable limitations set forth therein. It is not necessary for the Administrative Agent or any Lender to inquire into the capacity or powers of any Borrower or any of its Subsidiaries or the officers, directors, members, partners or agents acting or purporting to act on its behalf, and any Borrower’s Obligations made or created in reliance upon the professed exercise of such powers shall constitute the joint and several obligations of each of the Issuers without preferences or distinction among themBorrowers hereunder. If and to the extent that any of the Issuers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Issuers will make such payment with respect to, or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement on the part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers 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 1.4 shall remain in effect until all the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfers) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).
Appears in 1 contract
Sources: Credit Agreement (Urban One, Inc.)
Joint and Several Liability. Each of the Issuers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Issuers and in consideration of the undertakings of each of the Issuers to accept joint and several liability for the All obligations of each of them. Each of the Issuers jointly Tradestar and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Issuers with respect to the payment and performance of all of the Obligations arising Petroleum Engineers under this Agreement and (including the Obligations), the Note, the other Loan Documents, it being and any other instrument, agreement or document delivered to the intention Lender by any of Tradestar and Petroleum Engineers, shall be (a) joint and several and (b) the primary obligation of each of Tradestar and Petroleum Engineers. All references to the term "Borrower" herein shall refer to each of Tradestar and Petroleum Engineers separately and to all of them jointly and all such Persons shall be bound both severally and jointly with the others. The Obligations shall include all debts, liabilities and obligations owed to the Lender by any of Tradestar and Petroleum Engineers solely or by all or any of them jointly or jointly and severally. Each of Tradestar and Petroleum Engineers acknowledges and agrees that its joint and several liability on the Obligations is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by the Lender, and without limiting the generality of the parties hereto that all the Obligations shall be foregoing, the joint and several obligations liability of each of the Issuers without preferences or distinction among them. If Tradestar and to the extent that any of the Issuers shall fail to make any payment with respect to any of Petroleum Engineers on the Obligations as and when due shall not be impaired by any acceptance by the Lender of any other security for or to perform any of guarantors upon the Obligations in accordance with the terms thereofor by any failure, then in each such event, the other Issuers will make such payment with respect to, neglect or perform, such Obligation. Each of the Issuers further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Issuers for amounts so paid under this Agreement until such time as the Purchasers have been indefeasibly paid in full and all Obligations under this Agreement have been terminated. The obligations of each Issuer under the provisions of this Section 1.4 constitute full recourse obligations of such Issuer, enforceable against it to the full extent of its properties and assets. The provisions of this Section 1.4 are made for the benefit of the Purchasers and their successors and assigns, and may be enforced by them from time to time against any of the Issuers as often as occasion therefor may arise and without requirement omission on the Lender's part of any of the Purchasers first to marshal any of its claims or to exercise any of its rights against the other Issuers or to exhaust any remedies available to it against the other Issuers or to resort to any one or all of Tradestar and Petroleum Engineers's payment of the Obligations or to realize upon or protect any collateral security therefor. The joint and several liability of each of Tradestar and Petroleum Engineers on the Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the Revolving Advances or benefits of the Letters of Credit or for what purposes such credits and financial accommodations are used, and each of Tradestar and Petroleum Engineers waives notice of Revolving Advance requests issued by, and Revolving Advances made to, any of Tradestar and Petroleum Engineers. Such joint and several liability of each of Tradestar and Petroleum Engineers shall also not be impaired or affected by (and the Lender, without notice to anyone, is hereby authorized to make from time to time) any sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in, modification or disposition of any collateral security for the Obligations or of any guaranty thereof. In order to enforce payment of the Obligations, foreclose or otherwise realize on any Collateral, or exercise any other source rights granted hereunder or means under any other Loan Document or under applicable law, the Lender shall be under no obligation at any time to first resort to any Collateral, Liens, or any other property, rights or remedies whatsoever, and the Lender shall have the right to enforce the Obligations irrespective of obtaining whether or not other proceedings or steps are pending, seeking resort to or realization upon or from any of the foregoing. Each of Tradestar and Petroleum Engineers hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse, or subrogation available to such Person against any other Person liable for payment of any Obligations, or as to any security therefor, unless and until the Obligations have been paid and satisfied in full after the expiration of all Letters of Credit, release by the Lender of the Obligations hereunder or Security Interest and termination of the Credit Facility. By its acceptance below, each of Tradestar and Petroleum Engineers hereby expressly waives and surrenders any defense to elect any other remedy. The provisions of this Section 1.4 shall remain in effect until all its joint and several liability on the Obligations shall have been indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of based upon any of the Obligations foregoing. All property described in the definition of "Collateral" shall be included as Collateral, whether it is rescinded owned jointly by all or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy or reorganization of any of the Issuers, Tradestar and Petroleum Engineers or otherwise, the provisions of this Section 1.4 will forthwith be reinstated and is owned in effect as though such payment had not been made. Notwithstanding any provision to the contrary contained herein whole or in any of the other Loan Documents, to the extent the Obligations of any of the Issuers shall be adjudicated to be invalid part by one (or unenforceable for any reason (including, without limitation, because of any applicable Laws relating to fraudulent conveyances or transfersmore) then the Obligations of such Issuer hereunder shall be limited to the maximum amount that is permissible under applicable Law. To the extent that any Loan Party is deemed to be a surety or guarantor of any other Loan Party, each such Loan Party hereby waives and all defenses to suretyship and guarantee which may be available to it under applicable law (other than payment in full of the Obligations).of
Appears in 1 contract
Sources: Credit and Security Agreement (Tradestar Services, Inc.)