Borrowers' Representatives. Borrowers hereby represent and warrant to Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise be obtainable by Borrowers individually, and (b) Borrowers’ additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to Borrowers of the financing. Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that Borrowers shall be deemed to have represented and warranted to Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics as Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of Lender in the exercise of its sole and absolute discretion), in the name of General Physics or in the name of Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General Physics, any one or more of Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by each of Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower or in the name of General Physics. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lender, and may be exercised from time to time through General Physics’ duly authorized officer, officers or other Person or Persons designated by General Physics to act from time to time on behalf of General Physics. Each of Borrowers hereby irrevocably authorizes Lender to make Loans to any one or more of Borrowers, and hereby irrevocably authorizes Lender to issue or cause to be issued Letters of Credit for the account of any or all of Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers on file with Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics on file with Lender. Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender and Borrowers in connection with the Credit Facilities, any Loan, any Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, Lender agrees that, notwithstanding any other provision of this Agreement, Borrowers may create reasonable inter-company indebtedness between or among Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. Borrowers agree among themselves, and Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 2 contracts
Samples: Financing and Security Agreement (Gp Strategies Corp), Financing and Security Agreement (Gp Strategies Corp)
Borrowers' Representatives. The Borrowers hereby represent and warrant to Lender the Administrative Agent and the Lenders that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by the Borrowers individually, and (b) the Borrowers’ ' additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the LoanLoans, provided, however, that the Borrowers shall be deemed to have represented and warranted to Lender the Administrative Agent and the Lenders at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics the Parent as such Borrower’s 's attorney-in-fact, with power of substitution (with the prior written consent of Lender the Administrative Agent in the exercise of its sole and absolute discretion), in the name of General Physics the Parent or in the name of such Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds proceeds thereof) as General Physics the Parent may so elect from time to time, including, without limitation, actions to (i) request advances under the LoanLoans, apply for and direct the benefits of Letters of Credits, and direct Lender the Administrative Agent to disburse or credit the proceeds of any Loan directly to an account of General Physicsthe Parent, any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment acknowledgement by each of the Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of such Borrower or in the name of General Physicsthe Parent. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lenderthe Administrative Agent, and may be exercised from time to time through General Physics’ the Parent's duly authorized officer, officers or other Person or Persons designated by General Physics the Parent to act from time to time on behalf of General Physicsthe Parent. Each of the Borrowers hereby irrevocably authorizes Lender each of the Lenders to make Loans to any one or more all of the Borrowers, and hereby irrevocably authorizes Lender the Administrative Agent to issue or cause to be issued Letters of Credit for the account of any or all of the Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Borrowers on file with Lender the Administrative Agent and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the Parent under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics the Parent on file with Lenderthe Administrative Agent. Lender Neither the Administrative Agent nor any of the Lenders assumes no any responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender the Administrative Agent and the Borrowers or the Administrative Agent and any of the Lenders in connection with the Credit Facilities, any Loan, any Letter of Credit or any other transaction in connection with the provisions of this Agreement, except to the extent any such errors, mistakes and/or discrepancies are the proximate result of gross negligence or willful misconduct by the Administrative Agent or any Lender. Without implying any limitation on the joint and several nature of the Obligations, Lender agrees the Lenders agree that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and Lender consents the Administrative Agent and the Lenders consent to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender the Administrative Agent agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to Lender the Administrative Agent and the Lenders under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 2 contracts
Samples: Financing and Security Agreement (Walbro Corp), Financing and Security Agreement (Walbro Corp)
Borrowers' Representatives. Borrowers (a) The Borrower hereby represent represents and warrant warrants to Lender the Agent and the Lenders that the Borrower and each of them Subsidiary Guarantor will derive benefits, directly and indirectly, from each Letter of Credit, from each Bond Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which the Borrower and each of Borrowers belong Subsidiary Guarantor belongs and because (i) the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (aii) this financing is enabling the PackerWare Merger Transaction, (iii) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by Borrowers the Borrower and any Subsidiary Guarantor individually, and (biv) Borrowers’ the Borrower's additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to Borrowers the Borrower of the financing. Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that Borrowers shall be deemed to have represented and warranted to Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each such financings.
(b) The Borrower hereby irrevocably appoints General Physics as Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of Lender in the exercise of its sole and absolute discretion), in the name of General Physics or in the name of Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General Physics, any one or more of Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by authorizes each of Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower or in the name of General Physics. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lender, and may be exercised from time to time through General Physics’ duly authorized officer, officers or other Person or Persons designated by General Physics to act from time to time on behalf of General Physics. Each of Borrowers hereby irrevocably authorizes Lender Lenders to make Loans to any one or more of Borrowersthe Borrower, and hereby irrevocably authorizes Lender the Agent to issue or cause to be issued Letters of Credit and Bond Letters of Credit for the account of any or all of Borrowersthe Borrower, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a the Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers the Borrower on file with Lender the Agent and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics the Borrower on file with Lender. Lender the Agent.
(c) Neither the Agent nor any of the Lenders assumes no any responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender the Agent and Borrowers the Borrower or the Agent and any of the Lenders in connection with the Credit Facilities, any Loan, any Letter of Credit, any Bond Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint , except for acts of willful misconduct and several nature of the Obligations, Lender agrees that, notwithstanding any other provision of this Agreement, Borrowers may create reasonable inter-company indebtedness between or among Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. Borrowers agree among themselves, and Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Lawsgross negligence.
Appears in 2 contracts
Samples: Financing and Security Agreement (BPC Holding Corp), Financing and Security Agreement (BPC Holding Corp)
Borrowers' Representatives. (a) The Borrowers hereby represent and warrant to the Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) this financing is enabling the Purchase Agreement Transaction, (b) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by the Borrowers individually, and (bc) the Borrowers’ additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the LoanLoans, provided, however, that the Borrowers shall be deemed to have represented and warranted to the Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. .
(b) For administrative convenience, each Borrower hereby irrevocably appoints General Physics TVI as the Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of the Lender in the exercise of its sole and absolute discretion), in the name of General Physics TVI or in the name of the Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds proceeds thereof) as General Physics TVI may so elect from time to time, including, without limitation, actions to (i) request advances under the LoanLoans, apply for and direct the benefits of Letters of Credits, and direct the Lender to disburse or credit the proceeds of any Loan directly to an account of General PhysicsTVI, any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment acknowledgement by each of the Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of the Borrower or in the name of General PhysicsTVI. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of the Lender, and may be exercised from time to time through General Physics’ TVI’s duly authorized officer, officers or other Person or Persons designated by General Physics TVI to act from time to time on behalf of General Physics. TVI.
(c) Each of the Borrowers hereby irrevocably authorizes the Lender to make Loans to any one or more of the Borrowers, and hereby irrevocably authorizes the Lender to issue or cause to be issued Letters of Credit for the account of any or all of the Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Borrowers on file with the Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the TVI under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics the TVI on file with the Lender. .
(d) The Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between the Lender and the Borrowers in connection with the Credit Facilities, any Loan, any and Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, the Lender agrees that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and the Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless the Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.5.5 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to the Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 2 contracts
Samples: Financing and Security Agreement (Tvi Corp), Financing and Security Agreement (Tvi Corp)
Borrowers' Representatives. The Borrowers hereby represent and warrant to the Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by the Borrowers individually, and (b) the Borrowers’ ' additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the LoanLoans, provided, however, that the Borrowers shall be deemed to have represented and warranted to the Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics the Company as the Borrower’s 's attorney-in-fact, with power of substitution (with the prior written consent of the Lender in the exercise of its sole and absolute discretion), in the name of General Physics the Company or in the name of the Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds proceeds thereof) as General Physics the Company may so elect from time to time, including, without limitation, actions to (i) request advances under the LoanLoans, apply for and direct the benefits of Letters of Credits, and direct the Lender to disburse or credit the proceeds of any Loan directly to an account of General Physicsthe Company, any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment acknowledgement by each of the Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional additional Borrower Joinder Supplementjoinder supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of the Borrower or in the name of General Physicsthe Company. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of the Lender, and may be exercised from time to time through General Physics’ the Company's duly authorized officer, officers or other Person or Persons designated by General Physics the Company to act from time to time on behalf of General Physicsthe Company. Each of the Borrowers hereby irrevocably authorizes the Lender to make Loans to any one or more all of the Borrowers, and hereby irrevocably authorizes the Lender to issue or cause to be issued Letters of Credit for the account of any or all of the Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Borrowers on file with the Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the Company under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics the Company on file with the Lender. The Lender assumes no does not assume any responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between the Lender and the Borrowers or the Lender in connection with the Credit Facilities, any Loan, any Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, the Lender agrees that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and the Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless the Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Samples: Financing and Security Agreement (Kimberton Enterprises Inc)
Borrowers' Representatives. Borrowers (a) The Borrower hereby represent represents and warrant warrants to Lender the Agent and the Lenders that the Borrower and each of them Subsidiary Guarantor will derive benefits, directly and indirectly, from each Letter of Credit, from each Bond Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which the Borrower and each of Borrowers belong Subsidiary Guarantor belongs and because (i) the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (aii) this financing enabled the PackerWare Merger Transaction and is enabling the Venture Stock Purchase/Merger Transaction, (iii) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by Borrowers the Borrower and any Subsidiary Guarantor individually, and (biv) Borrowers’ the Borrower's additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to Borrowers the Borrower of the financing. Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that Borrowers shall be deemed to have represented and warranted to Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each such financings.
(b) The Borrower hereby irrevocably appoints General Physics as Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of Lender in the exercise of its sole and absolute discretion), in the name of General Physics or in the name of Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General Physics, any one or more of Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by authorizes each of Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower or in the name of General Physics. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lender, and may be exercised from time to time through General Physics’ duly authorized officer, officers or other Person or Persons designated by General Physics to act from time to time on behalf of General Physics. Each of Borrowers hereby irrevocably authorizes Lender Lenders to make Loans to any one or more of Borrowersthe Borrower, and hereby irrevocably authorizes Lender the Agent to issue or cause to be issued Letters of Credit and Bond Letters of Credit for the account of any or all of Borrowersthe Borrower, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a the Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers the Borrower on file with Lender the Agent and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics the Borrower on file with Lender. Lender the Agent.
(c) Neither the Agent nor any of the Lenders assumes no any responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender the Agent and Borrowers the Borrower or the Agent and any of the Lenders in connection with the Credit Facilities, any Loan, any Letter of Credit, any Bond Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint , except for acts of willful misconduct and several nature of the Obligations, Lender agrees that, notwithstanding any other provision of this Agreement, Borrowers may create reasonable inter-company indebtedness between or among Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. Borrowers agree among themselves, and Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Lawsgross negligence.
Appears in 1 contract
Samples: Financing and Security Agreement (BPC Holding Corp)
Borrowers' Representatives. Borrowers (a) The Borrower hereby represent represents and warrant warrants to Lender the Agent and the Lenders that the Borrower and each of them Subsidiary Guarantor will derive benefits, directly and indirectly, from each Letter of Credit, from each Bond Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which the Borrower and each of Borrowers belong Subsidiary Guarantor belongs and because (i) the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (aii) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by Borrowers the Borrower, Xxxxx UK, NIM Holdings and any Subsidiary Guarantor individually, and (biii) Borrowers’ the Borrower's additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to Borrowers the Borrower of the financing. Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that Borrowers shall be deemed to have represented and warranted to Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each such financings.
(b) The Borrower hereby irrevocably appoints General Physics as Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of Lender in the exercise of its sole and absolute discretion), in the name of General Physics or in the name of Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General Physics, any one or more of Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by authorizes each of Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower or in the name of General Physics. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lender, and may be exercised from time to time through General Physics’ duly authorized officer, officers or other Person or Persons designated by General Physics to act from time to time on behalf of General Physics. Each of Borrowers hereby irrevocably authorizes Lender Lenders to make Loans to any one or more of Borrowersthe Borrower, and hereby irrevocably authorizes Lender the Agent to issue or cause to be issued Letters of Credit and Bond Letters of Credit for the account of any or all of Borrowersthe Borrower, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a the Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers the Borrower on file with Lender the Agent and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics the Borrower on file with Lenderthe Agent. Lender Xxxxx UK and NIM Holdings each hereby irrevocably authorizes Bank of America, acting through its Sterling LIBOR Lending Office, to make Loans to Xxxxx UK and/or NIM Holdings, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of Xxxxx UK or NIM Holdings under the provisions of the most recent certificate of corporate resolutions of Xxxxx UK or NIM Holdings on file with Bank of America, acting through its Sterling LIBOR Lending Office, and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of Xxxxx UK or NIM Holdings under the provisions of the most recent certificate of corporate resolutions and/or incumbency for Xxxxx UK or NIM Holdings on file with Bank of America, acting through its Sterling LIBOR Lending Office.
(c) Neither the Agent nor any of the Lenders assumes no any responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender the Agent or Bank of America, acting through its Sterling LIBOR Lending Office, and Borrowers the Borrower, Xxxxx UK and/or NIM Holdings or the Agent or Bank of America, acting through its Sterling LIBOR Lending Office, and any of the Lenders in connection with the Credit Facilities, any Loan, any Letter of Credit, any Bond Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint , except for acts of willful misconduct and several nature of the Obligations, Lender agrees that, notwithstanding any other provision of this Agreement, Borrowers may create reasonable inter-company indebtedness between or among Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. Borrowers agree among themselves, and Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Lawsgross negligence.
Appears in 1 contract
Samples: Financing and Security Agreement (BPC Holding Corp)
Borrowers' Representatives. Borrowers hereby represent and warrant to Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each advance of the Revolving Loan, both in their separate capacity and as a member of the integrated group to which each of Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise be obtainable by Borrowers individually, and (b) Borrowers’ additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to Borrowers of the financing. Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that Borrowers shall be deemed to have represented and warranted to Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics GP as Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of Lender in the exercise of its sole and absolute discretion), in the name of General Physics GP or in the name of Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics GP may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General PhysicsGP, any one or more of Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by each of Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower or in the name of General PhysicsGP. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lender, and may be exercised from time to time through General Physics’ GP’s duly authorized officer, officers or other Person or Persons designated by General Physics GP to act from time to time on behalf of General PhysicsGP. Each of Borrowers hereby irrevocably authorizes Lender to make Loans advances of the Revolving Loan to any one or more of Borrowers, and hereby irrevocably authorizes Lender to issue or cause to be issued Letters of Credit for the account of any or all of Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers on file with Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics GP under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics GP on file with Lender. Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender and Borrowers in connection with the Credit Facilities, any advance of the Revolving Loan, any Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, Lender agrees that, notwithstanding any other provision of this Agreement, Borrowers may create reasonable inter-company indebtedness between or among Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. Borrowers agree among themselves, and Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.4.9 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Samples: Financing and Security Agreement (Gp Strategies Corp)
Borrowers' Representatives. The Borrowers hereby represent and warrant to the Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise be obtainable by the Borrowers individually, and (b) this financing is enabling the Purchase Agreement Transaction and (c) Borrowers’ ' additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that the Borrowers shall be deemed to have represented and warranted to the Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics Puroflow as the Borrower’s 's attorney-in-fact, with power of substitution (with the prior written consent of the Lender in the exercise of its sole and absolute discretion), in the name of General Physics Puroflow or in the name of the Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics Puroflow may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for Loan and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General Physics, Puroflow any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by each of the Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of CreditLoan, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of the Borrower or in the name of General PhysicsPuroflow. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of the Lender, and may be exercised from time to time through General Physics’ Puroflow's duly authorized officer, officers or other Person or Persons designated by General Physics Puroflow to act from time to time on behalf of General PhysicsPuroflow. Each of the Borrowers hereby irrevocably authorizes the Lender to make Loans to any one or more of Borrowers, and hereby irrevocably authorizes Lender to issue or cause to be issued Letters of Credit for the account of any or all of Borrowers, Borrowers pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Borrowers on file with the Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics Puroflow under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics Puroflow on file with the Lender. The Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between the Lender and the Borrowers in connection with the Credit Facilities, any Loan, any Letter of Credit Loan or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, the Lender agrees that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and the Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless the Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.3.8 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to the Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Samples: Financing Agreement (Argan Inc)
Borrowers' Representatives. The Borrowers hereby represent and warrant to the Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise be obtainable by the Borrowers individually, and (b) the Borrowers’ additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that the Borrowers shall be deemed to have represented and warranted to the Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics Versar as Borrower’s the Borrowers’ attorney-in-fact, with power of substitution (with the prior written consent of the Lender in the exercise of its sole and absolute discretion), in the name of General Physics Versar or in the name of Borrower the Borrowers or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics Versar may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for and direct the benefits of Letters of Credits, and direct the Lender to disburse or credit the proceeds of any Loan directly to an account of General PhysicsVersar, any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by each of the Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower the Borrowers or in the name of General PhysicsVersar. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of the Lender, and may be exercised from time to time through General Physics’ Versar’s duly authorized officer, officers or other Person or Persons designated by General Physics Versar to act from time to time on behalf of General PhysicsVersar. Each of the Borrowers hereby irrevocably authorizes the Lender to make Loans to any one or more of the Borrowers, and hereby irrevocably authorizes the Lender to issue or cause to be issued Letters of Credit for the account of any or all of the Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Borrowers on file with the Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics Versar under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics Versar on file with the Lender. The Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between the Lender and the Borrowers in connection with the Credit Facilities, any Loan, any Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, the Lender agrees that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and the Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans Loan received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless the Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.3.8 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to the Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Borrowers' Representatives. Borrowers hereby represent and warrant to Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each advance of the Revolving Loan, both in their separate capacity and as a member of the integrated group to which each of Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise be obtainable by Borrowers individually, and (b) Borrowers’ additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to Borrowers of the financing. Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that Borrowers shall be deemed to have represented and warranted to Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics GP as Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of Lender in the exercise of its sole and absolute discretion), in the name of General Physics GP or in the name of Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics GP may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General PhysicsGP, any one or more of Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by each of Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower or in the name of General PhysicsGP. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lender, and may be exercised from time to time through General Physics’ GP’s duly authorized officer, officers or other Person or Persons designated by General Physics GP to act from time to time on behalf of General PhysicsGP. Each of Borrowers hereby irrevocably authorizes Lender to make Loans advances of the Revolving Loan to any one or more of Borrowers, and hereby irrevocably authorizes Lender to issue or cause to be issued Letters of Credit for the account of any or all of Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers on file with Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics GP under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics GP on file with Lender. Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender and Borrowers in connection with the Credit Facilities, any advance of the Revolving Loan, any Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, Lender agrees that, notwithstanding any other provision of this Agreement, Borrowers may create reasonable inter-company indebtedness between or among Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. Borrowers agree among themselves, and Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Until this Agreement has been terminated and the Obligations have been paid in full in cash, Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.5.8 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Samples: Financing and Security Agreement (Gp Strategies Corp)
Borrowers' Representatives. (a) The Borrowers hereby represent and warrant to the Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) this financing is enabling the Purchase Agreement Transaction, (b) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by the Borrowers individually, and (bc) the Borrowers’ additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the LoanLoans, provided, however, that the Borrowers shall be deemed to have represented and warranted to the Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. .
(b) For administrative convenience, each Borrower hereby irrevocably appoints General Physics TVI as the Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of the Lender in the exercise of its sole and absolute discretion), in the name of General Physics TVI or in the name of the Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds proceeds thereof) as General Physics TVI may so elect from time to time, including, without limitation, actions to (i) request advances under the LoanLoans, apply for and direct the benefits of Letters of Credits, and direct the Lender to disburse or credit the proceeds of any Loan directly to an account of General PhysicsTVI, any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment acknowledgement by each of the Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of the Borrower or in the name of General PhysicsTVI. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of the Lender, and may be exercised from time to time through General Physics’ TVI’s duly authorized officer, officers or other Person or Persons designated by General Physics TVI to act from time to time on behalf of General Physics. TVI.
(c) Each of the Borrowers hereby irrevocably authorizes the Lender to make Loans to any one or more of the Borrowers, and hereby irrevocably authorizes the Lender to issue or cause to be issued Letters of Credit for the account of any or all of the Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Borrowers on file with the Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the TVI under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics the TVI on file with the Lender. .
(d) The Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between the Lender and the Borrowers in connection with the Credit Facilities, any Loan, any and Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, the Lender agrees that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and the Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless the Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.6.5 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to the Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Borrowers' Representatives. Borrowers (a) The Borrower hereby represent represents and warrant warrants to Lender the Agent and the Lenders that the Borrower and each of them Subsidiary Guarantor will derive benefits, directly and indirectly, from each Letter of Credit and from each Loanthe Loans, both in their separate capacity and as a member of the integrated group to which the Borrower and each of Borrowers belong Subsidiary Guarantor belongs and because (i) the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (aii) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by Borrowers the Borrower and any Subsidiary Guarantor individually, and (biii) Borrowers’ the Borrower's additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to Borrowers the Borrower of the financing. Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that Borrowers shall be deemed to have represented and warranted to Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each such financings.
(b) The Borrower hereby irrevocably appoints General Physics as Borrower’s attorney-in-fact, with power authorizes each of substitution (with the prior written consent of Lender in Lenders to make the exercise of its sole and absolute discretion), in the name of General Physics or in the name of Borrower or otherwise to take any and all actions with respect Loans to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General Physics, any one or more of Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by each of Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower or in the name of General Physics. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lender, and may be exercised from time to time through General Physics’ duly authorized officer, officers or other Person or Persons designated by General Physics to act from time to time on behalf of General Physics. Each of Borrowers hereby irrevocably authorizes Lender to make Loans to any one or more of Borrowers, and hereby irrevocably authorizes Lender to issue or cause to be issued Letters of Credit for the account of any or all of BorrowersBorrower, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers on file with Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics of the Borrower on file with Lender. Lender the Agent.
(c) Neither the Agent nor any of the Lenders assumes no any responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender the Agent and Borrowers the Borrower or the Agent and any of the Lenders in connection with the Credit Facilities, any Loan, any Letter of Credit Loan or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint , except for acts of willful misconduct and several nature of the Obligations, Lender agrees that, notwithstanding any other provision of this Agreement, Borrowers may create reasonable inter-company indebtedness between or among Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. Borrowers agree among themselves, and Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Lawsgross negligence.
Appears in 1 contract
Borrowers' Representatives. The Borrowers hereby represent and warrant to Lender the Agent and the Lenders that each of them will derive benefits, directly and indirectly, from each Letter of Credit Credit, each Citizens Letter of Credit, and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) this financing is enabling the AK Purchase Agreement Transaction and any Permitted Acquisition, (b) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by the Borrowers individually, and (bc) the Borrowers’ additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, Loans; provided, however, that the Borrowers shall be deemed to have represented and warranted to Lender the Agent and the Lenders at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics VSE as each Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of Lender the Agent in the exercise of its sole and absolute discretion), in the name of General Physics VSE or in the name of the Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics VSE may so elect from time to time, including, without limitation, actions to (i) request advances under the LoanLoans, apply for and direct the benefits of Letters of Credits, and direct Lender the Agent to disburse or credit the proceeds of any Loan directly to an account of General PhysicsVSE, any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by each of the Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit or Citizens Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of the Borrower or in the name of General PhysicsVSE. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lenderthe Agent, and may be exercised from time to time through General Physics’ VSE’s duly authorized officer, officers or other Person or Persons designated by General Physics VSE to act from time to time on behalf of General PhysicsVSE. Each of the Borrowers hereby irrevocably authorizes Lender each of the Lenders to make Loans to any one or more of the Borrowers, and hereby irrevocably authorizes Lender the Agent to issue or cause to be issued Letters of Credit for the account of any or all of the Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Borrowers on file with Lender the Agent and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics VSE under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics VSE on file with Lenderthe Agent. Lender Neither the Agent nor any of the Lenders assumes no any responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender the Agent and the Borrowers or the Agent and any of the Lenders in connection with the Credit Facilities, any Loan, any Letter of Credit Credit, any Citizens Letter of Credit, or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, Lender agrees the Lenders agree that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and Lender consents the Agent and the Lenders consent to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender the Agent agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.7.11 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to Lender the Agent and the Lenders under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Borrowers' Representatives. The Borrowers hereby represent and warrant to the Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise be obtainable by the Borrowers individually, (b) this financing has enabled a certain purchase agreement transaction and (bc) Borrowers’ additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that the Borrowers shall be deemed to have represented and warranted to the Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics Argan as Borrower’s each Borrowers attorney-in-fact, with power of substitution (with the prior written consent of the Lender in the exercise of its sole and absolute discretion), in the name of General Physics Argan or in the name of any Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics Argan may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for Loan and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General Physics, Argan any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by each of the Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of CreditLoan, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of any Borrower or in the name of General PhysicsArgan. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of the Lender, and may be exercised from time to time through General Physics’ Argan’s duly authorized officer, officers or other Person or Persons designated by General Physics Argan to act from time to time on behalf of General PhysicsArgan. Each of the Borrowers hereby irrevocably authorizes the Lender to make Loans to any one or more of Borrowers, and hereby irrevocably authorizes Lender to issue or cause to be issued Letters of Credit for the account of any or all of Borrowers, Borrowers pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Borrowers on file with the Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics Argan under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics Argan on file with the Lender. The Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between the Lender and the Borrowers in connection with the Credit Facilities, any Loan, any Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, the Lender agrees that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and the Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless the Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.5.8 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to the Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Borrowers' Representatives. The Borrowers hereby represent and warrant to the Lender that each of them will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise be obtainable by the Borrowers individually, and (b) this financing has enabled a certain purchase agreement transaction and (c) Borrowers’ ' additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that the Borrowers shall be deemed to have represented and warranted to the Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics Argan as the Borrower’s 's attorney-in-fact, with power of substitution (with the prior written consent of the Lender in the exercise of its sole and absolute discretion), in the name of General Physics Argan or in the name of any Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics Argan may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for Loan and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General Physics, Argan any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by each of the Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of CreditLoan, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of the Borrower or in the name of General PhysicsArgan. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of the Lender, and may be exercised from time to time through General Physics’ Argan's duly authorized officer, officers or other Person or Persons designated by General Physics Argan to act from time to time on behalf of General PhysicsArgan. Each of the Borrowers hereby irrevocably authorizes the Lender to make Loans to any one or more of Borrowers, and hereby irrevocably authorizes Lender to issue or cause to be issued Letters of Credit for the account of any or all of Borrowers, Borrowers pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Borrowers on file with the Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics Argan under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics Argan on file with the Lender. The Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between the Lender and the Borrowers in connection with the Credit Facilities, any Loan, any Letter of Credit Loan or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, the Lender agrees that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and the Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless the Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.3.8 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to the Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Borrowers' Representatives. The Borrowers hereby represent and warrant to the Lender that each of them will derive benefits, directly and indirectly, from each Letter of advance under the Revolving Credit and from each LoanFacility, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong belong, and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than otherwise would otherwise be obtainable by the Borrowers individually, and (b) the Borrowers’ ' additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the proceeds of each advance made under the Revolving Credit and the benefits of Letters of Credit and the proceeds of the LoanCredit, provided, however, that the Borrowers shall be deemed to have represented and warranted to the Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics the Company as the Borrower’s 's attorney-in-fact, with power of substitution (with the prior written consent of the Lender in the exercise of its sole and absolute discretion), in the name of General Physics the Company or in the name of any Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics the Company may so elect from time to time, including, without limitation, actions to (i) request advances under the LoanRevolving Credit, apply for and direct the benefits of Letters of CreditsCredit, and direct the Lender to disburse or credit the proceeds of any Loan advance made under the Revolving Credit directly to an account of General Physicsthe Company, any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan advance under the Revolving Credit and shall constitute the acknowledgment by each of the Borrowers of the receipt of the proceeds of such Loan or advance under the Revolving Credit and the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of the Borrower or in the name of General Physicsthe Company. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of the Lender, and may be exercised from time to time through General Physics’ the Company's duly authorized officer, officers or other Person or Persons designated by General Physics the Company to act from time to time on behalf of General Physicsthe Company. Each of the Borrowers hereby irrevocably authorizes the Lender (in its sole discretion) to make Loans to any one or more of Borrowers, advances under the Revolving Credit and hereby irrevocably authorizes Lender to issue or cause to be issued Letters of Credit for the account of any or all of the Borrowers, to the Company pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower the Company under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers the Company on file with Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics on file with Lender. The Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies (other than those due solely to the Lender's gross negligence or willful misconduct) in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between the Lender and the Borrowers in connection with the Credit Facilities, any Loan, any Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, the Lender agrees that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and the Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans Revolving Credit received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless the Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves the Borrowers arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.3.11 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to the Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Samples: Financing and Security Agreement (Spacehab Inc \Wa\)
Borrowers' Representatives. Borrowers (i) The Borrower hereby represent represents and warrant warrants to Lender the Agent and the Lenders that the Borrower and each of them Subsidiary Guarantor will derive benefits, directly and indirectly, from each Letter of Credit, from each Bond Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which the Borrower and each of Borrowers belong Subsidiary Guarantor belongs and because (i) the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (aii) this financing enabled the PackerWare Merger Transaction and the Venture Stock Purchase Merger/Transaction and is enabling the Norwich Stock Purchase Transaction, (iii) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by Borrowers the Borrower, Xxxxx UK, Norwich and any Subsidiary Guarantor individually, and (biv) Borrowers’ the Borrower's additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to Borrowers the Borrower of the financing. Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the Loan, provided, however, that Borrowers shall be deemed to have represented and warranted to Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each such financings.
(ii) The Borrower hereby irrevocably appoints General Physics as Borrower’s attorney-in-fact, with power of substitution (with the prior written consent of Lender in the exercise of its sole and absolute discretion), in the name of General Physics or in the name of Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds thereof) as General Physics may so elect from time to time, including, without limitation, actions to (i) request advances under the Loan, apply for and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan directly to an account of General Physics, any one or more of Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment by authorizes each of Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower or in the name of General Physics. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lender, and may be exercised from time to time through General Physics’ duly authorized officer, officers or other Person or Persons designated by General Physics to act from time to time on behalf of General Physics. Each of Borrowers hereby irrevocably authorizes Lender Lenders to make Loans to any one or more of Borrowersthe Borrower, and hereby irrevocably authorizes Lender the Agent to issue or cause to be issued Letters of Credit and Bond Letters of Credit for the account of any or all of Borrowersthe Borrower, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a the Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers the Borrower on file with Lender the Agent and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics the Borrower on file with Lenderthe Agent. Lender Xxxxx UK and Norwich each hereby irrevocably authorizes NationsBank to make Loans to Xxxxx UK and/or Norwich, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of Xxxxx UK or Norwich under the provisions of the most recent certificate of corporate resolutions of Xxxxx UK or Norwich on file with NationsBank and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of Xxxxx UK or Norwich under the provisions of the most recent certificate of corporate resolutions and/or incumbency for Xxxxx UK or Norwich on file with NationsBank.
(iii) Neither the Agent nor any of the Lenders assumes no any responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender the Agent or NationsBank and Borrowers the Borrower, Xxxxx UK and/or Norwich or the Agent or NationsBank and any of the Lenders in connection with the Credit Facilities, any Loan, any Letter of Credit, any Bond Letter of Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint , except for acts of willful misconduct and several nature of the Obligations, Lender agrees that, notwithstanding any other provision of this Agreement, Borrowers may create reasonable inter-company indebtedness between or among Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. Borrowers agree among themselves, and Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Lawsgross negligence.
Appears in 1 contract
Samples: Financing and Security Agreement (Norwich Injection Moulders LTD)
Borrowers' Representatives. (a) The Borrowers hereby represent and warrant to Lender the Agent and the Lenders that each of them and their respective Subsidiaries will derive benefits, directly and indirectly, from each Letter of Credit and from each Loan, both in their separate capacity and as a member of the integrated group to which each of the Borrowers and their Subsidiaries belong and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (ai) this financing is enabling the refinancing of the Existing Credit Facilities, (ii) the terms of the consolidated financing provided under this Agreement are more favorable than would otherwise would be obtainable by the Borrowers or their Subsidiaries individually, and (biii) Borrowers’ the additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to Borrowers of the financing. The Revolving Credit Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of the LoanRevolving Loan advances, provided, however, that the Revolving Credit Borrowers shall be deemed to have represented and warranted to Lender the Agent and the Lenders at the time of allocation that each benefit and use of proceeds is a Permitted Use. .
(b) For administrative convenience, each Borrower hereby irrevocably appoints General Physics the Parent as the Borrower’s 's attorney-in-fact, with power of substitution (with the prior written consent of Lender the Agent in the exercise of its sole and absolute discretion), in the name of General Physics the Parent or in the name of Borrower any or all of the Borrowers or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds proceeds thereof) as General Physics the Parent may so elect from time to time, including, without limitation, actions to (i) request advances under the LoanLoans, apply for and direct the benefits of Letters of Credits, and direct Lender the Agent to disburse or credit the proceeds of any Loan directly to an account of General Physicsthe Parent, any one or more of the Revolving Credit Borrowers or otherwise, which direction shall evidence the making of such Loan and shall constitute the acknowledgment acknowledgement by each of the Revolving Credit Borrowers of the receipt of the proceeds of such Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of Borrower any or all of the Borrowers or in the name of General Physicsthe Parent. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lenderthe Agent, and may be exercised from time to time through General Physics’ the Parent's duly authorized officer, officers or other Person or Persons designated by General Physics the Parent to act from time to time on behalf of General Physics. the Parent.
(c) Each of the Revolving Credit Borrowers hereby irrevocably authorizes Lender each of the Lenders to make Loans to any one or more all of the Revolving Credit Borrowers, and hereby irrevocably authorizes Lender the Agent to issue or cause to be issued Letters of Credit for the account of any or all of the Revolving Credit Borrowers, pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Revolving Credit Borrower under the provisions of the most recent certificate of corporate resolutions and/or incumbency of the Revolving Credit Borrowers on file with Lender the Agent and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics the Parent under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics the Parent on file with Lender. Lender the Agent.
(d) Neither the Agent nor any of the Lenders assumes no any responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender the Agent and the Borrowers or the Agent and any of the Lenders in connection with the Credit Facilities, any Loan, any Letter of Credit or any other transaction in connection with the provisions of this Agreement. , except for acts of gross negligence or willful misconduct.
(e) Without implying any limitation on the joint and several nature of the Obligations, Lender agrees the Lenders agree that, notwithstanding any other provision of this Agreement, the Revolving Credit Borrowers may create reasonable inter-company indebtedness between or among the Revolving Credit Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Revolving Credit Borrowers agree among themselves, and Lender consents the Agent and the Lenders consent to that agreement, that each Revolving Credit Borrower shall have rights of contribution from all of the other Revolving Credit Borrowers to the extent such Revolving Credit Borrower incurs Obligations in excess of the proceeds of the Loans received by, or allocated to purposes for the direct benefit of, such Revolving Credit Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Revolving Credit Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless Lender the Agent agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Revolving Credit Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Revolving Credit Borrower hereby waives all rights of counterclaimcounter- claim, recoupment and offset between or among themselves arising on account of that indebtedness and otherwise. Each No Revolving Credit Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower to Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Borrowers' Representatives. The Borrowers hereby represent and warrant to the Lender that each of them will derive benefits, directly and indirectly, from each Letter of advance under the Revolving Credit and from each LoanFacility, both in their separate capacity and as a member of the integrated group to which each of the Borrowers belong belong, and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, because (a) the terms of the consolidated financing provided under this Agreement are more favorable than otherwise would otherwise be obtainable by the Borrowers individually, and (b) the Borrowers’ ' additional administrative and other costs and reduced flexibility associated with individual financing arrangements which would otherwise be required if obtainable would substantially reduce the value to the Borrowers of the financing. The Borrowers in the discretion of their respective managements are to agree among themselves as to the allocation of the benefits of Letters of Credit and the proceeds of each advance made under the LoanRevolving Credit, provided, however, that the Borrowers shall be deemed to have represented and warranted to the Lender at the time of allocation that each benefit and use of proceeds is a Permitted Use. For administrative convenience, each Borrower hereby irrevocably appoints General Physics the Company as the Borrower’s 's attorney-in-fact, with power of substitution (with the prior written consent of the Lender in the exercise of its sole and absolute discretion), in the name of General Physics the Company or in the name of any Borrower or otherwise to take any and all actions with respect to the this Agreement, the other Financing Documents, the Obligations and/or the Collateral (including, without limitation, the Proceeds proceeds thereof) as General Physics the Company may so elect from time to time, including, without limitation, actions to (i) request advances under the LoanRevolving Credit, apply for and direct the benefits of Letters of Credits, and direct Lender to disburse or credit the proceeds of any Loan advance made under the Revolving Credit directly to an account of General Physicsthe Company, any one or more of the Borrowers or otherwise, which direction shall evidence the making of such Loan advance under the Revolving Credit and shall constitute the acknowledgment by each of the Borrowers of the receipt of the proceeds of such Loan or advance under the benefit of such Letter of Revolving Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any Additional Borrower Joinder Supplement, any other Financing Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time, and (iii) endorse any check or other item of payment in the name of the Borrower or in the name of General Physicsthe Company. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of the Lender, and may be exercised from time to time through General Physics’ the Company's duly authorized officer, officers or other Person or Persons designated by General Physics the Company to act from time to time on behalf of General Physicsthe Company. Each of the Borrowers hereby irrevocably authorizes the Lender (in its sole discretion) to make Loans advances under the Revolving Credit to any one or more of Borrowers, and hereby irrevocably authorizes Lender to issue or cause to be issued Letters of Credit for the account of any or all of Borrowers, Company pursuant to the provisions of this Agreement upon the written, oral or telephone request of any one or more of the Persons who is from time to time a Responsible Officer of a Borrower the Company under the provisions of the most recent certificate of corporate resolutions and/or incumbency of Borrowers the Company on file with Lender and also upon the written, oral or telephone request of any one of the Persons who is from time to time a Responsible Officer of General Physics under the provisions of the most recent certificate of corporate resolutions and/or incumbency for General Physics on file with Lender. The Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies (other than those due solely to the Lender's gross negligence or willful misconduct) in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between the Lender and the Borrowers in connection with the Credit Facilities, any Loan, any Letter of advance under the Revolving Credit or any other transaction in connection with the provisions of this Agreement. Without implying any limitation on the joint and several nature of the Obligations, the Lender agrees that, notwithstanding any other provision of this Agreement, the Borrowers may create reasonable inter-company indebtedness between or among the Borrowers with respect to the allocation of the benefits and proceeds of the advances and Credit Facilities under this Agreement. The Borrowers agree among themselves, and the Lender consents to that agreement, that each Borrower shall have rights of contribution from all of the other Borrowers to the extent such Borrower incurs Obligations in excess of the proceeds of the Loans Revolving Credit received by, or allocated to purposes for the direct benefit of, such Borrower. All such indebtedness and rights shall be, and are hereby agreed by the Borrowers to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, unless the Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. The Borrowers agree that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations. Each Borrower hereby waives all rights of counterclaim, recoupment and offset between or among themselves the Borrowers arising on account of that indebtedness and otherwise. Each Borrower shall not evidence the inter-company indebtedness or rights of contribution by note or other instrument, and shall not secure such indebtedness or rights of contribution with any Lien or security. Notwithstanding anything contained in this Agreement to the contrary, the amount covered by each Borrower under the Obligations (including, without limitation, Section 2.4.10 2.3.12 (Guaranty)) shall be limited to an aggregate amount (after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Borrower in respect of the Obligations) which, together with other amounts owing by such Borrower Borrowers to the Lender under the Obligations, is equal to the largest amount that would not be subject to avoidance under the Bankruptcy Code or any applicable provisions of any applicable, comparable state or other Laws.
Appears in 1 contract
Samples: Financing and Security Agreement (Spacehab Inc \Wa\)
