Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent. (b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment). (c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 42 contracts
Samples: Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Corp.)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Laurus that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 17 contracts
Samples: Security and Purchase Agreement (Time America Inc), Security Agreement (Time America Inc), Security and Purchase Agreement (Micro Component Technology Inc)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such Borrower’s Company's Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other's property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Laurus that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 16 contracts
Samples: Security Agreement (Deja Foods Inc), Security Agreement (General Environmental Management, Inc), Security Agreement (Gse Systems Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 13 contracts
Samples: Loan and Security Agreement (Lets Talk Cellular & Wireless Inc), Revolving Credit and Security Agreement (Robotic Vision Systems Inc), Revolving Credit, Term Loan and Security Agreement (Terrace Holdings Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 9 contracts
Samples: Revolving Credit and Security Agreement (Union Drilling Inc), Revolving Credit and Security Agreement (Imco Recycling Inc), Revolving Credit and Security Agreement (Foster L B Co)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 5 contracts
Samples: Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement, Revolving Credit and Security Agreement (Emerge Energy Services LP)
Borrowing Agency Provisions. If and to the extent that at any time or from time to time there are multiple Borrowers, then.
(a) Each Borrower acknowledges that, together with each other Borrower, it is part of an affiliated common enterprise in which any loans or other financial accommodations extended to any one Borrower will result in direct and substantial economic benefit to each other Borrower, and each Borrower will likewise benefit from the economies of scale associated with the Borrowers, as a group, applying for credit or other financial accommodations on a collective basis.
(b) Each Borrower hereby irrevocably designates Borrowing Agent Representative to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent Lender to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing AgentRepresentative.
(bc) The handling of this credit facility as a co-borrowing facility with a borrowing agent Borrowing Representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall not incur liability to Borrowers as a result thereof. To induce Agent and Lenders Lender to do so and in consideration thereof, each Borrower Borrower, jointly and severally, hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent Lender or any Lender issuer by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent Representative or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(cd) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any by Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 5 contracts
Samples: Loan and Security Agreement (ATRM Holdings, Inc.), Loan and Security Agreement (ATRM Holdings, Inc.), Loan and Security Agreement (Kush Bottles, Inc.)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication), to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, writings applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other agreements, documents, instruments, certificates, notices and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name of such Borrower Loan Party or Borrowersthe Loan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers the Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgmentjudgment or order).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses.
Appears in 4 contracts
Samples: Revolving Credit and Security Agreement (Ugi Corp /Pa/), Revolving Credit and Security Agreement (Williams Industrial Services Group Inc.), Revolving Credit and Security Agreement (Williams Industrial Services Group Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 4 contracts
Samples: Revolving Credit and Security Agreement (Virco MFG Corporation), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, writings applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other agreements, documents, instruments, certificates, notices and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with the applicable Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or Borrowersthe Loan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers the Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to the willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgmentjudgment or order).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and or forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses. Each of the Loan Parties shall be jointly and severally liable with respect to its Obligations under this Agreement and the Other Documents to which it is party (including each other payment, reimbursement, indemnification and contribution Obligation under this Agreement and any Other Document).
Appears in 4 contracts
Samples: Revolving Credit and Security Agreement (Quantum Corp /De/), Revolving Credit and Security Agreement (Quantum Corp /De/), Revolving Credit and Security Agreement (Quantum Corp /De/)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request Advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders Xxxxxxx to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct misconduct, bad faith or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 4 contracts
Samples: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Innovex Downhole Solutions, Inc.)
Borrowing Agency Provisions. If and to the extent that at any time or from time to time there are multiple Loan Parties, then:
(a) Each Borrower Loan Party acknowledges that it, together with each other Loan Party, make up a related organization of various entities constituting a single economic and business enterprise and sharing a substantial identity of interests such that, without limitation, Loan Parties render services to or for the benefit of each other, purchase or sell and supply goods to or from or for the benefit of each other, make loans, advances and provide other financial accommodations to or for the benefit of each other (including the payment of creditors and guarantees of Indebtedness), provide administrative, marketing, payroll and management services to or for the benefit of each other; have centralized accounting, common officers and directors; and are in certain circumstances are identified to creditors as a single economic and business enterprise. Accordingly, and without limitation, any credit or other financial accommodation extended to anyone Loan Party pursuant hereto will result in direct and substantial economic benefit to each other Loan Party, and each Loan Party will likewise benefit from the economies of scale associated with the Loan Parties, as a group, applying for credit or other financial accommodations pursuant hereto on a collective basis.
(b) Each Loan Party hereby irrevocably designates Borrowing Agent Borrower Representative to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower Loan Party or BorrowersLoan Parties, and hereby authorizes Agent and Lenders to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing AgentBorrower Representative.
(bc) The handling of this credit facility as a co-borrowing facility with a borrowing agent Borrower Representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers Loan Parties and at their request. Neither Agent nor any None of the Lender Parties shall incur any liability to Borrowers Loan Parties as a result thereof. To induce Agent and Lenders the Lender Parties to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each the Lender Parties and holds Agent and each the Lender Parties harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any the Lender Parties by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Loan Parties as provided herein, reliance by Agent or any of the Lender Parties on any request or instruction from Borrowing Agent Borrower Representative or any other action taken by Agent or any of the Lender Parties with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(cd) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender Lenders to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender Lenders to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 3 contracts
Samples: Credit and Security Agreement (Manhattan Bridge Capital, Inc), Credit and Security Agreement (Manhattan Bridge Capital, Inc), Credit and Security Agreement (Sachem Capital Corp.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request Advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct misconduct, bad faith or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 3 contracts
Samples: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Innovex Downhole Solutions, Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication), to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers or any other Person as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 3 contracts
Samples: Revolving Credit and Security Agreement and Guaranty (Viant Technology Inc.), Revolving Credit and Security Agreement (Viant Technology Inc.), Revolving Credit and Security Agreement and Guaranty (Viant Technology Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-co- borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 3 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (Batteries Batteries Inc), Revolving Credit, Term Loan and Security Agreement (Health Chem Corp), Revolving Credit and Security Agreement (Trescom International Inc)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other agreements, documents, instruments, certificates, notices, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name of such Borrower Loan Party or BorrowersLoan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 3 contracts
Samples: Revolving Credit, Guaranty and Security Agreement (Babcock & Wilcox Enterprises, Inc.), Export Import Revolving Credit, Guaranty and Security Agreement (Dasan Zhone Solutions Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Dasan Zhone Solutions Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates the Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all notices, instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or the Borrowers, and hereby authorizes the Agent to pay over or credit all loan proceeds of Advances hereunder in accordance with the request requests of the Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to the Borrowers and at their request. Neither Agent nor the Agent, any Lender nor the Issuer shall incur liability to Borrowers the Loan Parties as a result thereof. To induce Agent the Agent, the Lenders and Lenders the Issuer to do so so, and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and the Agent, each Lender and the Issuer and holds Agent and the Agent, each Lender and the Issuer harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or the Agent, any Lender or the Issuer by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Loan Parties as provided herein, reliance by Agent or the Agent, any Lender or the Issuer on any request or instruction from the Borrowing Agent or any other action taken by Agent or the Agent, any Lender or the Issuer with respect to this Section 15.1 14.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court party. This Section 14.1 shall survive the termination of competent jurisdiction in a final and non-appealable judgment)this Agreement.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 3 contracts
Samples: Credit and Security Agreement (Stoneridge Inc), Credit and Security Agreement (Stoneridge Inc), Credit and Security Agreement (Stoneridge Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, [PHI Group] Revolving Credit, Term Loan and Security Agreement writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.. [PHI Group] Revolving Credit, Term Loan and Security Agreement
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or BorrowersLoan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Worthington Steel, Inc.), Revolving Credit and Security Agreement (Ampco Pittsburgh Corp)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Companies represent and warrant to Laurus that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of Companies as though, for purposes of this Agreement, Companies constituted a single entity.
Appears in 2 contracts
Samples: Security Agreement (Dynamic Health Products Inc), Security Agreement (Earthfirst Technologies Inc)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent GSSF to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor GSSF shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders GSSF to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender GSSF and holds Agent and each Lender GSSF harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender GSSF by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender GSSF on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender GSSF with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by GSSF to any BorrowerCompany, failure of Agent or any Lender GSSF to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender GSSF to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender GSSF of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or GSSF to any Lender to the other Borrowers Company or any Collateral for such Borrower’s Company's Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other's property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to GSSF that (i) the Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of the Companies are closely related to, and substantially benefit, the business and corporate activities of the Companies, (iii) the financial and other operations of the Companies are performed on a combined basis as if the Companies constituted a consolidated corporate group, (iv) the Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 2 contracts
Samples: Security Agreement (American Technologies Group Inc), Security Agreement (American Technologies Group Inc)
Borrowing Agency Provisions. If and to the extent that at any time or from time to time there are multiple Borrowers, then.
(a) Each Borrower acknowledges that, together with each other Borrower, it is part of an affiliated common enterprise in which any loans or other financial accommodations extended to any one Borrower will result in direct and substantial economic benefit to each other Borrower, and each Borrower will likewise benefit from the economies of scale associated with the Borrowers, as a group, applying for credit or other financial accommodations on a collective basis.
(b) Each Borrower hereby irrevocably designates Borrowing Agent Representative to be its attorney and agent and and, in such capacity capacity, to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent Lender to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing AgentRepresentative.
(bc) The handling of this credit facility as a co-borrowing facility with a borrowing agent Borrowing Representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall not incur liability to Borrowers as a result thereof. To induce Agent and Lenders Lender to do so and in consideration thereof, each Borrower Borrower, jointly and severally, hereby indemnifies Agent and each Lender Lxxxxx and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent Lender or any Lender issuer by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender Lxxxxx on any request or instruction from Borrowing Agent Representative or any other action taken by Agent or any Lender Lxxxxx with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(cd) All Obligations shall be joint and several, and each Borrower Corporate Credit Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Corporate Credit Party shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any by Lender to any BorrowerCorporate Credit Party, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerCorporate Credit Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerCorporate Credit Party, and such agreement by each Borrower Corporate Credit Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Credit Parties or any Collateral for such BorrowerCorporate Credit Party’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Loan and Security Agreement (Digirad Corp), Loan and Security Agreement (Digirad Corp)
Borrowing Agency Provisions. (a) U.S. Borrowing Agent.
(i) Each U.S. Borrower hereby irrevocably designates U.S. Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersU.S. Borrower, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of U.S. Borrowing Agent.
(bii) The handling of this the credit facility for the U.S. Borrowers as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to the U.S. Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers any U.S. Borrower as a result thereof. To induce Agent Agent, Co-Collateral Agents and Lenders to do so and in consideration thereof, each U.S. Borrower hereby indemnifies Agent, each Co-Collateral Agent and each Lender and holds Agent, each Co-Collateral Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent, any Co-Collateral Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of the U.S. Borrowers as provided herein, reliance by Agent, any Co-Collateral Agent or any Lender on any request or instruction from U.S. Borrowing Agent or any other action taken by Agent, Co-Collateral Agent or any Lender with respect to this Section 15.1 15.18(a) except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(ciii) All Subject to Section 2.24, all U.S. Obligations shall be joint and several, and each U.S. Borrower shall make payment upon the maturity of the U.S. Obligations by acceleration or otherwise, and such obligation and liability on the part of each U.S. Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any U.S. Borrower, failure of Agent or any Lender to give any U.S. Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any U.S. Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any U.S. Borrower, and such agreement by each U.S. Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other U.S. Borrowers or any Collateral for such Borrower’s the U.S. Obligations or the lack thereof. Each U.S. Borrower waives all suretyship defenses.
(iv) All requests for U.S. Advances or other actions taken on behalf of U.S. Borrowers shall be clearly identified as such so as to enable Agent to monitor and identify such transactions.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.), Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Borrowing Agency Provisions. (a) Each Borrower Credit Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or BorrowersCredit Party, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to bad faith, willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, several and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (Drilling Tools International Corp), Revolving Credit, Security and Guaranty Agreement (ROC Energy Acquisition Corp.)
Borrowing Agency Provisions. (a) Each Borrower and each Guarantor hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notices, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name of such Borrower or BorrowersGuarantor, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and Guarantors and at their request. Neither Agent nor any Lender shall incur liability to Borrowers or Guarantors as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower and each Guarantor hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers and Guarantors as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower and each Guarantor shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower and each Guarantor shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerBorrower or Guarantor, failure of Agent or any Lender to give any Borrower or Guarantor notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerBorrower or Guarantor, the release by Agent or any Lender of any Collateral now or thereafter hereafter acquired from any BorrowerBorrower or Guarantor, and such agreement by each Borrower and each Guarantor to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or Guarantors or any Collateral for such Borrower’s or Guarantor’s Obligations or the lack thereof. Each Borrower and each Guarantor waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Build-a-Bear Workshop Inc), Revolving Credit and Security Agreement (Build a Bear Workshop Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent ASG to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing AgentASG.
(b) The handling of this credit facility as a co-borrowing facility with a and the designation by each Borrower of ASG as its borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor None of Agent, any L/C Bank or any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent Agent, each L/C Bank and each Lender and holds Agent Agent, each L/C Bank and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent Agent, any L/C Bank or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent ASG or any other action taken by Agent or any Lender with respect to this Section 15.1 11-B except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (America Service Group Inc /De), Revolving Credit, Term Loan and Security Agreement (America Service Group Inc /De)
Borrowing Agency Provisions. (ai) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent and Lender to pay over or credit all loan proceeds of the Loans hereunder in accordance with the request of Borrowing Agent.
(bii) The handling of this credit facility as a co-borrowing facility with a borrowing agent Borrowing Agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders Lender to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any Borrower or any other action taken by Agent or any Lender with respect to this Section 15.1 SECTION 30
(a) except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(ciii) All Obligations Borrowers' Liabilities shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations Liabilities by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations 's Liabilities or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Sl Industries Inc)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Laurus that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 2 contracts
Samples: Security and Purchase Agreement (Stockeryale Inc), Security and Purchase Agreement (Miscor Group, Ltd.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Image Entertainment Inc), Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations Each of the Borrowers shall be jointly and severally liable with respect to their Obligations under the Agreement and the Other Documents to which it is party (including the Obligations to repay the Advances and interest and fees thereon, together with each other payment, reimbursement, indemnification and contribution Obligation under this Agreement and any Other Document). Such joint and severalseveral liability of each Borrower shall not be impaired or released by, and each Borrower shall make payment upon irrevocably waives any defense it might have by virtue of: (i) the maturity failure of any Lender or the Obligations by acceleration Agent or any successor or assign thereof to assert any claim or demand or to exercise or enforce any right, power or remedy against any Borrower, any other Person, any collateral under this Agreement or otherwise, and (ii) any extension or renewal for any period (whether or not longer than the original period) or exchange of any of the obligations under this Agreement or any Other Document or the release or compromise of any obligation of any nature of any Person with respect thereto, (iii) the surrender, release or exchange of all or any part of any property (including any collateral under this Agreement or otherwise) securing payment, performance and/or observance of any of the obligations under this Agreement or the Other Documents or the compromise or extension or renewal for any period (whether or not longer than the original period) of any obligations of any nature of any Person with respect to any such obligation and liability property, (iv) any action or inaction on the part of each Borrower shall in no way be affected by any extensionsLender, renewals and forbearance granted to the Agent or any Lender to any Borrowerother Person, failure of Agent or any Lender to give any Borrower notice of borrowing or any other noticeevent or condition with respect to any other Borrower, including any failure such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such other Borrower, or a guarantor or surety of Agent or for any or all of the Obligations under this Agreement or the Other Documents, (v) any disability, incapacity or lack or powers, authority or legal personality of or dissolution or change in the members or status of any Borrower or any other person, (vi) any unenforceability, illegality or invalidity of any obligation of any other Person under this Agreement or any Other Document or any other document, guaranty or security, (vii) any avoidance, postponement, discharge, reduction, non-provability or other similar circumstance affecting any obligation of any Credit Party under this Agreement or an Other Document resulting from any bankruptcy, insolvency, receivership, liquidation or dissolution proceedings or from any law, regulation or order so that each such obligation shall for the purposes of such other Borrower’s obligations hereunder be construed as if there were no such circumstances, (viii) the release or substitution of any other Borrower in respect of the Obligations, or (ix) any other act, matter or thing which would or might, in the absence of this provision, operate to release, discharge or otherwise prejudicially affect the joint and several nature of the obligations of such or any other Borrower. It is understood and agreed that the Lenders and the Agent shall be entitled to payment from any one or more Borrowers, as determined by the Lenders and the Agent in their discretion, of any amount due in accordance with this Agreement and the Other Documents, and no Lender nor the Agent shall be required to pursue seek prior or preserve simultaneous payment from any other Borrower. Until the indefeasible payment in full in cash of all Obligations and the expiration or termination of the Commitments under this Agreement, each Borrower hereby agrees that it shall not exercise any right or remedy arising by reason of any performance by such Borrower of its obligations hereunder, whether by subrogation, reimbursement, contribution, indemnification or otherwise, against any other Borrower or any other Person or any Collateral for any of the Obligations.
(d) Notwithstanding anything to the contrary in Section 15.1(c), the obligations of each Borrower under Section 15.1(c) with respect to advances made by a Secured Party to one or more other Borrowers shall be limited to a maximum aggregate amount equal to the largest amount that would not render such Borrower’s undertakings hereunder subject to avoidance as a fraudulent transfer or fraudulent conveyance under Section 548 of Title 11 of the United States Bankruptcy Code or any applicable provisions of comparable state law (collectively, the “Fraudulent Transfer Laws”), in each case taking into account the provisions of Section 15.1(e), and after giving effect to all other liabilities of such Borrower, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights against to subrogation, contribution, reimbursement, indemnity or similar rights of such Borrower pursuant to applicable law or any agreement providing for an equitable allocation among such Borrower and the other Borrowers and Affiliates of the Borrowers of obligations arising under co-borrowings or guarantees by such parties.
(e) The Borrowers hereby agree, as between themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below) by reason of the payment by such Borrower of any of the Obligations, each other Borrower shall, on written demand of such Excess Funding Borrower (but subject to the immediately following sentence), pay to such Excess Funding Borrower an amount equal to such Borrower’s Pro Rata Borrower Share (as defined below and determined, for this purpose, without reference to the properties, debts and liabilities of such Excess Funding Borrower) of the Excess Borrower Payment (as defined below) in respect of such Obligations. The payment obligation of a Borrower to any Excess Funding Borrower under this clause (e) shall be subordinated and subject in right of payment to the prior payment in full of the Obligations and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment in full of all of the Obligations. For purposes of this Section 15.1(e), (i) “Excess Funding Borrower” means a Borrower that has paid an amount in excess of its Pro Rata Borrower Share of the Obligations, (ii) “Excess Borrower Payment” means the amount paid by an Excess Funding Borrower in excess of its Pro Rata Borrower Share of the Obligations and (iii) “Pro Rata Borrower Share” means, for any Borrower, the release ratio (expressed as a percentage) of (x) the amount by Agent or which the aggregate fair saleable value of all properties of such Borrower (excluding any Lender shares of stock of any Collateral now or thereafter acquired from other Borrower) exceeds the amount of all the debts and liabilities of such Borrower (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of such Borrower hereunder and any obligations of any other Borrower that have been guaranteed by such Borrower) to (y) the amount by which the aggregate fair saleable value of all properties of all of the Borrowers exceeds the amount of all the debts and liabilities of all of the Borrowers (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of the Borrowers under this Agreement and the Other Documents), determined (A) with respect to any Borrower that is a party hereto on the date hereof, as of the date hereof, and (B) with respect to any other Borrower, and as of the date such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each becomes a Borrower waives all suretyship defenseshereunder.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement (Emerge Energy Services LP)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) sign and endorse notes, and (iii) execute and deliver all instruments, documents, writings applications, security agreements and all other agreements, documents, instruments, certificates, notices and further assurances now or hereafter required hereunder, (iv) make elections regarding interest rates, and (v) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or Borrowersthe Loan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers the Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to the willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgmentjudgment or order).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Term Loan Credit and Security Agreement (Quantum Corp /De/), Term Loan Credit and Security Agreement (Quantum Corp /De/)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor None of Agent, any Issuer or any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent Agent, each Issuer and each Lender and holds Agent Agent, each Issuer and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent Agent, any Issuer or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 16.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such Borrower’s Loan Party's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Loan and Security Agreement (Brown Jordan International Inc), Loan and Security Agreement (Bucyrus International Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Akrion, Inc.), Revolving Credit and Security Agreement (Akrion, Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Johnson Outdoors Inc), Revolving Credit and Security Agreement (Crocs, Inc.)
Borrowing Agency Provisions. If and to the extent that at any time or from time to time there are multiple Borrowers, then:
(a) Each Borrower acknowledges that, together with each other Borrower, it is part of an affiliated common enterprise in which any loans or other financial accommodations extended to any one Borrower will result in direct and substantial economic benefit to each other Borrower, and each Borrower will likewise benefit from the economies of scale associated with the Borrowers, as a group, applying for credit or other financial accommodations on a collective basis.
(b) Each Borrower hereby irrevocably designates Borrowing Agent Representative to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent Lender to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing AgentRepresentative.
(bc) The handling of this credit facility as a co-borrowing facility with a borrowing agent Borrowing Representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor None of Lender, the Bank, any Issuer or any Lender shall incur liability to Borrowers as a result thereof. To induce Agent Lender, the Bank, the Issuers, and Lenders the Lender to do so and in consideration thereof, each Borrower hereby indemnifies Agent Lender, Bank and each Lender and holds Agent Lender, Bank, each Issuer and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent Lender, Bank, any Issuer or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as a co-borrowing facility as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent Representative or any other action taken by Agent or any Lender with respect to this Section 15.1 Section, except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(cd) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any by Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Credit and Security Agreement (Omni Energy Services Corp), Credit and Security Agreement (Omni Energy Services Corp)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes the Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither The Agent nor shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce the Agent and Lenders to do so and in consideration thereof, each Borrower Company hereby indemnifies the Agent and each Lender and holds the Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by the Agent or any Lender on any request or instruction from Borrowing Company Agent or any other action taken by the Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 29.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to by the Agent or any Lender to any BorrowerCompany, failure of the Agent or any Lender to give any Borrower Company notice of borrowing or any other notice, any failure of the Agent or any Lender to pursue or to preserve its rights against any BorrowerCompany, the release by the Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Agent or to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to the Agent that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 2 contracts
Samples: Security Agreement (Rapid Link Inc), Security Agreement (Sten Corp)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Lender to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor any Lender shall not incur any liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Lender to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any by Lender to any BorrowerCompany, failure of Agent or any Lender to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers any Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Lender that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 2 contracts
Samples: Security Agreement (Applied Digital Solutions Inc), Security Agreement (Digital Angel Corp)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by 71 73 prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (PVC Container Corp), Revolving Credit, Term Loan and Security Agreement (PVC Container Corp)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Loan and Security Agreement (Bio Reference Laboratories Inc), Revolving Credit and Security Agreement (Allied Motion Technologies Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereofTO INDUCE AGENT AND LENDERS TO DO SO AND IN CONSIDERATION THEREOF, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilitiesEACH BORROWER HEREBY INDEMNIFIES AGENT AND EACH LENDER AND HOLDS AGENT AND EACH LENDER HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES (INCLUDING, expensesWITHOUT LIMITATION, lossesWITH RESPECT TO ANY ACT OR INACTION ARISING FROM AGENT’S NEGLIGENCE OR STRICT LIABILITY), damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided hereinEXPENSES, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section LOSSES, DAMAGES AND CLAIMS OF DAMAGE OR INJURY ASSERTED AGAINST AGENT OR ANY LENDER BY ANY PERSON ARISING FROM OR INCURRED BY REASON OF THE HANDLING OF THE FINANCING ARRANGEMENTS OF BORROWERS AS PROVIDED HEREIN, RELIANCE BY AGENT OR ANY LENDER ON ANY REQUEST OR INSTRUCTION FROM BORROWING AGENT OR ANY OTHER ACTION TAKEN BY AGENT OR ANY LENDER WITH RESPECT TO THIS SECTION 15.1 except due to willful misconduct or gross EXCEPT DUE TO WILLFUL MISCONDUCT OR GROSS (not mereNOT MERE) negligence by the indemnified party NEGLIGENCE BY THE INDEMNIFIED PARTY (as determined by a court of competent jurisdiction in a final and nonAS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NON-appealable judgmentAPPEALABLE JUDGMENT).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Englobal Corp), Revolving Credit and Security Agreement (Flotek Industries Inc/Cn/)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor None of Agent, any Issuer or any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and the Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent Agent, each Issuer and each Lender and holds Agent Agent, each Issuer and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent Agent, any Issuer or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 16.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such Borrower’s Loan Party's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Loan and Security Agreement (Bucyrus International Inc), Loan and Security Agreement (Bucyrus International Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (General Finance CORP), Revolving Credit, Term Loan and Security Agreement (Air Methods Corp)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (UniTek Global Services, Inc.), Revolving Credit and Security Agreement (UniTek Global Services, Inc.)
Borrowing Agency Provisions. (a) 12.1.1 Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Loan Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) 12.1.2 The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Administrative Agent or any Lender with respect to this Section 15.1 12.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) 12.1.3 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
12.1.4 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or any other Person directly or contingently liable for the Obligations hereunder, or against or with respect to any other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and the Obligations are Paid in Full.
Appears in 2 contracts
Samples: Credit Agreement (Steel Partners Holdings L.P.), Revolving Credit Agreement (Steel Partners Holdings L.P.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 15.2 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (E Com Ventures Inc), Revolving Credit and Security Agreement (E Com Ventures Inc)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or BorrowersLoan Parties, and hereby authorizes Administrative Agent and Term Loan B Agent, as applicable, to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Loan Parties and at their request. Neither any Agent nor any Lender shall incur liability to Borrowers Loan Parties as a result thereof. To induce Agent Agents and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies each Agent and each Lender and holds each Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against any Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Loan Parties as provided herein, reliance by any Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by any Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to by any Agent or any Lender to any BorrowerLoan Party, failure of any Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of any Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by any Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by any Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (A.S.V., LLC), Revolving Credit, Term Loan and Security Agreement (Manitex International, Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request Advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders Xxxxxxx to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of [Innovex] 2nd A&R Credit Agreement 150 the handling of the financing arrangements of Borrowers Xxxxxxxxx as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct misconduct, bad faith or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Innovex Downhole Solutions, Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request Advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Green Plains Inc.), Revolving Credit and Security Agreement (Green Plains Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates the Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes the Administrative Agent to pay over or credit all loan proceeds hereunder in accordance with the request of the Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to the Borrowers and at their request. Neither Agent the Administrative Agent, the Collateral Agent, nor any Lender shall incur liability to Borrowers any Borrower as a result thereof. To induce the Administrative Agent, the Collateral Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies the Administrative Agent, the Collateral Agent and each Lender and holds the Administrative Agent, the Collateral Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Administrative Agent, the Collateral Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of the Borrowers as provided herein, reliance by the Administrative Agent, the Collateral Agent or any Lender on any request or instruction from the Borrowing Agent or any other action taken by the Administrative Agent, the Collateral Agent or any Lender with respect to this Section 15.1 2.27, except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Subject to Section 2.29, all Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by the Administrative Agent, the Collateral Agent or any Lender to any Borrower, failure of the Administrative Agent, the Collateral Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of the Administrative Agent, the Collateral Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Administrative Agent, the Collateral Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 2 contracts
Samples: Credit Agreement (Activision Inc /Ny), Credit Agreement (Activision Inc /Ny)
Borrowing Agency Provisions. (a) Each Borrower 28.1 For the term of this Agreement and the Ancillary Agreements, each Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) 28.2 The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) 28.3 All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such Borrower’s Company's Obligations or the lack thereof. .
28.4 Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other's property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
28.5 Each Company represents and warrants to Laurus that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 2 contracts
Samples: Security Agreement (RG America, Inc.), Security Agreement (RG America, Inc.)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) sign and endorse notes, and (iii) execute and deliver all instruments, documents, writings applications, security agreements and all other agreements, documents, instruments, certificates, notices and further assurances now or hereafter required hereunder, (iv) make elections regarding interest rates, and (v) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or Borrowersthe Loan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers the Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to the willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgmentjudgment or order).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and or forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses. Each of the Loan Parties shall be jointly and severally liable with respect to its Obligations under this Agreement and the Other Documents to which it is party (including each other payment, reimbursement, indemnification and contribution Obligation under this Agreement and any Other Document).
Appears in 2 contracts
Samples: Term Loan Credit and Security Agreement (Quantum Corp /De/), Term Loan Credit and Security Agreement (Quantum Corp /De/)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, writings applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other agreements, documents, instruments, certificates, notices and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name of such Borrower Loan Party or Borrowersthe Loan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers the Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Perma-Pipe International Holdings, Inc.), Revolving Credit and Security Agreement (Perma-Pipe International Holdings, Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers by the Borrowing Agent as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Maxum Petroleum Holdings, Inc.)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or BorrowersLoan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.renewals
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Cca Industries Inc)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or BorrowersLoan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender to 222233776 pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such Borrower’s Loan Party's Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses.
(d) Notwithstanding any provisions regarding joint and several liability contained in this Agreement or in any agreements related hereto, this Agreement and such other agreements shall not constitute and shall not be construed as a guaranty by any Loan Party of any obligations which ATI may have hereunder, under any separate Guaranty executed by ATI or any other agreement related hereto to which ATI is a party.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Allegheny Technologies Inc)
Borrowing Agency Provisions. (a) Each Borrower of Company and each Eligible Subsidiary hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower Company or BorrowersEligible Subsidiary, and hereby authorizes Agent Federal Partners to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Company and each Eligible Subsidiary and at their request. Neither Agent nor Federal Partners shall not incur any Lender shall incur liability to Borrowers Company or any Eligible Subsidiary as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower of Company and each Eligible Subsidiary hereby indemnifies Agent and each Lender Federal Partners and holds Agent and each Lender Federal Partners harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Federal Partners by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Company and each Eligible Subsidiary as provided herein, reliance by Agent or any Lender Federal Partners on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Federal Partners with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)29.
(c) All Obligations shall be joint and several, and each Borrower of Company and each Eligible Subsidiary shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of Company and each Borrower Eligible Subsidiary shall in no way be affected by any extensions, renewals and forbearance granted by Federal Partners to Agent Company or any Lender to any BorrowerEligible Subsidiary, failure of Agent Federal Partners to give Company or any Lender to give any Borrower Eligible Subsidiary notice of borrowing or any other notice, any failure of Agent or any Lender Federal Partners to pursue or to preserve its rights against Company or any BorrowerEligible Subsidiary, the release by Agent or any Lender Federal Partners of any Collateral now or thereafter acquired from Company or any BorrowerEligible Subsidiary, and such agreement by each Borrower Company or any Eligible Subsidiary to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent Federal Partners to Company or any Lender to the other Borrowers Eligible Subsidiary or any Collateral for such BorrowerCompany’s or any Eligible Subsidiary’s Obligations or the lack thereof. .
(d) Each Borrower of Company and each Eligible Subsidiary expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which Company and such Eligible Subsidiary may now or hereafter have against the other or other person or entity directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been paid in full and this Agreement has been irrevocably terminated.
(e) Each of Company and each Eligible Subsidiary represents and warrants to Federal Partners that (i) Company and each Eligible Subsidiary have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of the Company and each Eligible Subsidiary are closely related to, and substantially benefit, the business and corporate activities of Company and each Eligible Subsidiary, (iii) the financial and other operations of Company and each Eligible Subsidiary are performed on a combined basis as if Company and each Eligible Subsidiary constituted a consolidated corporate group, (iv) Company and each Eligible Subsidiary will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by Company or any such Eligible Subsidiary and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of Company and each Eligible Subsidiary as though, for purposes of this Agreement, Company and each Eligible Subsidiary constituted a single entity.
Appears in 1 contract
Samples: Security and Purchase Agreement (Thomas Equipment, Inc.)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to borrow(i) request Advances, (ii) sign and endorse notes, and (iii) execute and deliver all instruments, documents, applications, security agreements, and all other agreements, documents, instruments, certificates, notices, writings and further assurances now or hereafter required hereunder, (iv) make elections regarding interest rates, and (v) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name of such Borrower Loan Party or BorrowersLoan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds advances hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Loan Parties and at their request. Neither Agent nor any Lender Cash Collateral Provider shall incur liability to Borrowers Loan Parties as a result thereof. To induce Agent and Lenders Cash Collateral Providers to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender Cash Collateral Provider and holds Agent and each Lender Cash Collateral Provider harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Cash Collateral Provider by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Loan Parties as provided herein, reliance by Agent or any Lender Cash Collateral Provider on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender Cash Collateral Provider with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender Cash Collateral Provider to any BorrowerLoan Party, failure of Agent or any Lender Cash Collateral Provider to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender Cash Collateral Provider to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender Cash Collateral Provider of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender Cash Collateral Provider to the other Borrowers Loan Parties or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Reimbursement, Guaranty and Security Agreement (Babcock & Wilcox Enterprises, Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment), and except that, Sand Tiger shall only be liable for the Sand Tiger Obligations.
(c) All Obligations shall be joint and severalseveral (provided, Sand Tiger shall only be liable for the Sand Tiger Obligations), and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Mammoth Energy Services, Inc.)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations Each of the Borrowers shall be jointly and severally liable with respect to their Obligations under the Agreement and the Other Documents to which it is party (including the Obligations to repay the Advances and interest and fees thereon, together with each other payment, reimbursement, indemnification and contribution Obligation under this Agreement and any Other Document). Such joint and severalseveral liability of each Borrower shall not be impaired or released by, and each Borrower shall make payment upon irrevocably waives any defense it might have by virtue of: (i) the maturity failure of any Lender or the Obligations by acceleration Agent or any successor or assign thereof to assert any claim or demand or to exercise or enforce any right, power or remedy against any Borrower, any other Person, any collateral under this Agreement or otherwise, and (ii) any extension or renewal for any period (whether or not longer than the original period) or exchange of any of the obligations under this Agreement or any Other Document or the release or compromise of any obligation of any nature of any Person with respect thereto, (iii) the surrender, release or exchange of all or any part of any property (including any collateral under this Agreement or otherwise) securing payment, performance and/or observance of any of the obligations under this Agreement or the Other Documents or the compromise or extension or renewal for any period (whether or not longer than the original period) of any obligations of any nature of any Person with respect to any such obligation and liability property, (iv) any action or inaction on the part of each Borrower shall in no way be affected by any extensionsLender, renewals and forbearance granted to the Agent or any Lender to any Borrowerother Person, failure of Agent or any Lender to give any Borrower notice of borrowing or any other noticeevent or condition with respect to any other Borrower, including any failure such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such other Borrower, or a guarantor or surety of Agent or for any or all of the Obligations under this Agreement or the Other Documents, (v) any disability, incapacity or lack of powers, authority or legal personality of or dissolution or change in the members or status of any Borrower or any other person, (vi) any unenforceability, illegality or invalidity of any obligation of any other Person under this Agreement or any Other Document or any other document, guaranty or security, (vii) any avoidance, postponement, discharge, reduction, non-provability or other similar circumstance affecting any obligation of any Credit Party under this Agreement or an Other Document resulting from any bankruptcy, insolvency, receivership, liquidation or dissolution proceedings or from any law, regulation or order so that each such obligation shall for the purposes of such other Borrower’s obligations hereunder be construed as if there were no such circumstances, (viii) the release or substitution of any other Borrower in respect of the Obligations, or (ix) any other act, matter or thing which would or might, in the absence of this provision, operate to release, discharge or otherwise prejudicially affect the joint and several nature of the obligations of such or any other Borrower. It is understood and agreed that the Lenders and the Agent shall be entitled to payment from any one or more Borrowers, as determined by the Lenders and the Agent in their discretion, of any amount due in accordance with this Agreement and the Other Documents, and no Lender nor the Agent shall be required to pursue seek prior or preserve simultaneous payment from any other Borrower. Until the indefeasible payment in full in cash of all Obligations and the expiration or termination of the Commitments under this Agreement, each Borrower hereby agrees that it shall not exercise any right or remedy arising by reason of any performance by such Borrower of its obligations hereunder, whether by subrogation, reimbursement, contribution, indemnification or otherwise, against any other Borrower or any other Person or any Collateral for any of the Obligations.
(d) Notwithstanding anything to the contrary in Section 15.1(c), the obligations of each Borrower under Section 15.1(c) with respect to advances made by a Secured Party to one or more other Borrowers shall be limited to a maximum aggregate amount equal to the largest amount that would not render such Borrower’s undertakings hereunder subject to avoidance as a fraudulent transfer or fraudulent conveyance under Section 548 of Title 11 of the United States Bankruptcy Code or any applicable provisions of comparable state law (collectively, the “Fraudulent Transfer Laws”), in each case taking into account the provisions of Section 15.1(e), and after giving effect to all other liabilities of such Borrower, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights against to subrogation, contribution, reimbursement, indemnity or similar rights of such Borrower pursuant to applicable law or any agreement providing for an equitable allocation among such Borrower and the other Borrowers and Affiliates of the Borrowers of obligations arising under co-borrowings or guarantees by such parties.
(e) The Borrowers hereby agree, as between themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below) by reason of the payment by such Borrower of any of the Obligations, each other Borrower shall, on written demand of such Excess Funding Borrower (but subject to the immediately following sentence), pay to such Excess Funding Borrower an amount equal to such Borrower’s Pro Rata Borrower Share (as defined below and determined, for this purpose, without reference to the properties, debts and liabilities of such Excess Funding Borrower) of the Excess Borrower Payment (as defined below) in respect of such Obligations. The payment obligation of a Borrower to any Excess Funding Borrower under this clause (e) shall be subordinated and subject in right of payment to the prior payment in full of the Obligations and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment in full of all of the Obligations. For purposes of this Section 15.1(e), (i) “Excess Funding Borrower” means a Borrower that has paid an amount in excess of its Pro Rata Borrower Share of the Obligations, (ii) “Excess Borrower Payment” means the amount paid by an Excess Funding Borrower in excess of its Pro Rata Borrower Share of the Obligations and (iii) “Pro Rata Borrower Share” means, for any Borrower, the release ratio (expressed as a percentage) of (x) the amount by Agent or which the aggregate fair saleable value of all properties of such Borrower (excluding any Lender shares of stock of any Collateral now or thereafter acquired from other Borrower) exceeds the amount of all the debts and liabilities of such Borrower (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of such Borrower hereunder and any obligations of any other Borrower that have been guaranteed by such Borrower) to (y) the amount by which the aggregate fair saleable value of all properties of all of the Borrowers exceeds the amount of all the debts and liabilities of all of the Borrowers (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of the Borrowers under this Agreement and the Other Documents), determined (A) with respect to any Borrower that is a party hereto on the date hereof, as of the date hereof, and (B) with respect to any other Borrower, and as of the date such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each becomes a Borrower waives all suretyship defenseshereunder.
Appears in 1 contract
Borrowing Agency Provisions. (a) Each Borrower US-Canada Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of US-Canada Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for US-Canada Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding US- Canada Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any US-Canada Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower US-Canada Loan Party or BorrowersUS-Canada Loan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) [Reserved].
(c) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Loan Parties and at their request. Neither the Agent nor any Lender shall incur liability to Borrowers Loan Parties as a result thereof. To induce the Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies the Agent and each Lender and holds the Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Loan Parties as provided herein, reliance by the Agent or any Lender on any request or instruction from any Borrowing Agent or any other action taken by the Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(cd) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to by the Agent or any Lender to any BorrowerLoan Party, failure of the Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of the Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by the Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Invacare Corp)
Borrowing Agency Provisions. (a) Each Borrower Issuer hereby irrevocably designates Borrowing Agent Issuer Representative to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower Issuer or BorrowersIssuers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing AgentIssuer Representative.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent an Issuer Representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers Issuers and at their request. Neither Agent nor any Lender Noteholder shall incur liability to Borrowers Issuers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations Each of the Issuers shall be jointly and severally liable with respect to their Obligations under this Agreement and the Other Documents to which it is party (including the Obligations to redeem or repurchase the Notes and Redemption Premium, interest and fees thereon, together with each other payment, reimbursement, indemnification and contribution Obligation under this Agreement and any Other Document). Such joint and severalseveral liability of each Issuer shall not be impaired or released by, and each Borrower shall make payment upon Issuer irrevocably waives any defense it might have by virtue of: (i) the maturity failure of any Noteholder or the Obligations by acceleration Agent or any successor or assign thereof to assert any claim or demand or to exercise or enforce any right, power or remedy against any Issuer, any other Person, any collateral under this Agreement or otherwise, and (ii) any extension or renewal for any period (whether or not longer than the original period) or exchange of any of the obligations under this Agreement or any Other Document or the release or compromise of any obligation of any nature of any Person with respect thereto, (iii) the surrender, release or exchange of all or any part of any property (including any collateral under this Agreement or otherwise) securing payment, performance and/or observance of any of the obligations under this Agreement or the Other Documents or the compromise or extension or renewal for any period (whether or not longer than the original period) of any obligations of any nature of any Person with respect to any such obligation and liability property, (iv) any action or inaction on the part of each Borrower shall in no way be affected by any extensionsNoteholder, renewals and forbearance granted to the Agent or any Lender to any Borrowerother Person, failure of Agent or any Lender to give any Borrower notice of borrowing or any other noticeevent or condition with respect to any other Issuer, including any failure such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such other Issuer, or a guarantor or surety of Agent or for any or all of the Obligations under this Agreement or the Other Documents, (v) any disability, incapacity or lack or powers, authority or legal personality of or dissolution or change in the members or status of any Issuer or any Lender other person, (vi) any unenforceability, illegality or invalidity of any obligation of any other Person under this Agreement or any Other Document or any other document, guaranty or security, (vii) any avoidance, postponement, discharge, reduction, non-provability or other similar circumstance affecting any obligation of any Note Party under this Agreement or any Other Document resulting from any bankruptcy, insolvency, receivership, liquidation or dissolution proceedings or from any law, regulation or order so that each such obligation shall for the purposes of such other Issuer’s obligations hereunder be construed as if there were no such circumstances, (viii) the release or substitution of any other Issuer in respect of the Obligations, or (ix) any other act, matter or thing which would or might, in the absence of this provision, operate to pursue release, discharge or preserve otherwise prejudicially affect the joint and several nature of the obligations of such or any other Issuer. It is understood and agreed that the Noteholders and the Agent shall be entitled to payment from any one or more Issuers, as determined by the Agent in its rights discretion, of any amount due in accordance with this Agreement and the Other Documents, and no Noteholder nor the Agent shall be required to seek prior or simultaneous payment from any other Issuer. Until the indefeasible payment in full in cash of all Obligations and the expiration or termination of the Commitments under this Agreement, each Issuer hereby agrees that it shall not exercise any right or remedy arising by reason of any performance by such Issuer of its obligations hereunder, whether by subrogation, reimbursement, contribution, indemnification or otherwise, against any Borrower, the release by Agent other Issuer or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Person or any Collateral for any of the Obligations.
(d) Notwithstanding anything to the contrary in Section 15.1(c), the obligations of each Issuer under Section 15.1(c) with respect to advances made by a Secured Party to one or more other Issuers shall be limited to a maximum aggregate amount equal to the largest amount that would not render such BorrowerIssuer’s Obligations undertakings hereunder subject to avoidance as a fraudulent transfer or fraudulent conveyance under Section 548 of Title 11 of the lack thereof. Each Borrower waives United States Bankruptcy Code or any applicable provisions of comparable state law (collectively, the “Fraudulent Transfer Laws”), in each case taking into account the provisions of Section 16.19(h), and after giving effect to all suretyship defensesother liabilities of such Issuer, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of such Issuer pursuant to Applicable Law or any agreement providing for an equitable allocation among such Issuer and the other Issuers and Affiliates of the Issuers of obligations arising under co-borrowings or guarantees by such parties.
Appears in 1 contract
Samples: Second Lien Note Purchase Agreement (Emerge Energy Services LP)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent Representative to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Lender upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent Lender to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing AgentRepresentative.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall not incur liability to Borrowers as a result thereof. To induce Agent and Lenders Lender to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent Representative or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any by Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Quality Gold Holdings, Inc.)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Laurus that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity although each Company is a separate legal entity.
Appears in 1 contract
Samples: Security Agreement (Iwt Tesoro Corp)
Borrowing Agency Provisions. (a) Each Person constituting the Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) sign and endorse notes, and (iv) execute and deliver all instruments, documents, applications, security agreements and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (v) make elections regarding interest rates and (vi) otherwise take action under and in connection with this Agreement and the other Loan Documents, all on behalf of and in the name such Borrower or BorrowersPersons constituting the Borrower, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Persons constituting the Borrower and at their request. Neither Agent nor any Lender shall incur liability to Borrowers the Borrower as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Person constituting the Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Borrower as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 11.1 except due to the gross negligence or willful misconduct of Agent or gross (not mere) negligence by the indemnified party such Lender or any of their respective officers, directors, employees, controlled Affiliates or agents (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Person constituting the Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Person constituting the Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender Secured Party to any Person constituting the Borrower, failure of Agent or any Lender to give any Person constituting the Borrower notice of borrowing or any other notice, any failure of Agent or any Lender Secured Party to pursue or preserve its rights against any Person constituting the Borrower, the release by Agent or any Lender Secured Party of any Collateral now or thereafter acquired from any Person constituting the Borrower, and such agreement by each Person constituting the Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender the Secured Parties to the other Persons constituting the Borrowers or any Collateral for such BorrowerPerson’s Obligations or the lack thereof. Each Person constituting the Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Credit Agreement (Connecture Inc)
Borrowing Agency Provisions. (aA) Each Notwithstanding anything to the contrary herein provided, each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Collateral Monitoring Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(bB) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative and Documentation Agent, Collateral Monitoring Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent Administrative and Documentation Agent, Collateral Monitoring Agent, and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative and Documentation Agent, Collateral Monitoring Agent and each Lender Lenders and holds Administrative and Documentation Agent, Collateral Monitoring Agent and each Lender Lenders harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative and Documentation Agent, Collateral Monitoring Agent or any Lender and Lenders by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative and Documentation Agent, Collateral Monitoring Agent or any Lender and Lenders on any request or instruction from Borrowing Agent or any other action taken by Administrative and Documentation Agent, Collateral Monitoring Agent or any Lender and Lenders with respect to this Section 15.1 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(cC) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations Obligations, by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Administrative and Documentation Agent or any Lender Requested Lenders to any Borrower, failure of Collateral Monitoring Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative and Documentation Agent, Collateral Monitoring Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative and Documentation Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto hereto is unconditional and unaffected by prior recourse by Administrative and Documentation Agent, Collateral Monitoring Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Loan and Security Agreement (Belding Heminway Co Inc /De/)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent Borrowing Agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor None of Agent, any Issuing Lender or any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and the Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent Agent, each Issuer and each Lender and holds Agent Agent, each Issuer and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent Agent, any Issuer or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 8A.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such Borrower’s Loan Party's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Loan and Security Agreement (Rocky Shoes & Boots Inc)
Borrowing Agency Provisions. (a) Each Borrower of Company and each Eligible Subsidiary hereby irrevocably designates Borrowing designate Company Agent to be its their attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower Company or BorrowersEligible Subsidiary, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Company and each Eligible Subsidiary and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers Company or any Eligible Subsidiary as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower of Company and each Eligible Subsidiary hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Company and each Eligible Subsidiary as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower of Company and each Eligible Subsidiary shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of Company and each Borrower Eligible Subsidiary shall in no way be affected by any extensions, renewals and forbearance granted by Laurus to Agent Company or any Lender to any BorrowerEligible Subsidiary, failure of Agent Laurus to give Company or any Lender to give any Borrower Eligible Subsidiary notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against Company or any BorrowerEligible Subsidiary, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from Company or any BorrowerEligible Subsidiary, and such agreement by each Borrower Company or any Eligible Subsidiary to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent Laurus to Company or any Lender to the other Borrowers Eligible Subsidiary or any Collateral for such Borrower’s Company's or any Eligible Subsidiary's Obligations or the lack thereof. .
(d) Each Borrower of Company and each Eligible Subsidiary expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which Company and such Eligible Subsidiary many now or hereafter have against the other or other person or entity directly or contingently liable for the Obligations, or against or with respect to any other's property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been paid in full and this Agreement has been irrevocably terminated.
(e) Each of the Company and each Eligible Subsidiary represents and warrants to Laurus that (i) Company and each Eligible Subsidiary have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of the Company and each Eligible Subsidiary are closely related to, and substantially benefit, the business and corporate activities of Company and each Eligible Subsidiary, (iii) the financial and other operations of Company and each Eligible Subsidiary are performed on a combined basis as if Company and each Eligible Subsidiary constituted a consolidated corporate group, (iv) Company and each Eligible Subsidiary will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by Company or any such Eligible Subsidiary and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of Company and each Eligible Subsidiary as though, for purposes of this Agreement, Company and each Eligible Subsidiary constituted a single entity.
Appears in 1 contract
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such Borrower’s Company's Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other's property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Laurus that (i) the Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of the Companies are closely related to, and substantially benefit, the business and corporate activities of the Companies, (iii) the financial and other operations of the Companies are performed on a combined basis as if the Companies constituted a consolidated corporate group, (iv) the Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 1 contract
Samples: Security Agreement (American Technologies Group Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates the Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or the Borrowers, and hereby authorizes Agent the Lender to pay over or credit all loan proceeds hereunder in accordance with the request of the Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to the Borrowers and at their request. Neither Agent the Lender nor any Lender the Issuer shall incur liability to the Borrowers as a result thereof. To induce Agent the Lender and Lenders the Issuer to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each the Lender and the Issuer and holds Agent the Lender and each Lender the Issuer harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent the Lender or any Lender the Issuer by any Person arising from or incurred by reason of the handling of the financing arrangements of the Borrowers as provided herein, reliance by Agent the Lender or any Lender the Issuer on any request or instruction from the Borrowing Agent or any other action taken by Agent the Lender or any Lender the Issuer with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent the Lender or any Lender the Issuer to any Borrower, failure of Agent the Lender or any Lender the Issuer to give any Borrower notice of borrowing or any other notice, any failure of Agent the Lender or any Lender the Issuer to pursue or preserve its rights against any Borrower, the release by Agent the Lender or any Lender the Issuer of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent the Lender or any Lender the Issuer to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses. Without limiting the generality of the foregoing, each of the Borrowers hereby acknowledges and agrees that any and all actions, inactions or omissions by any one or more, or all, of the Borrowers in connection with, related to or otherwise affecting this Agreement or any of the Other Documents are the obligations of, and inure to and are binding upon, each and all of the Borrowers, jointly and severally.
Appears in 1 contract
Samples: Credit and Security Agreement (Blonder Tongue Laboratories Inc)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request the Delayed Draw Term Loan, (iii) sign and endorse notes, and (iv) execute and deliver all instruments, documents, writings applications, security agreements and all other agreements, documents, instruments, certificates, notices and further assurances now or hereafter required hereunder, (v) make elections regarding interest rates, and (vi) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or Borrowersthe Loan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers the Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to the willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses.
Appears in 1 contract
Samples: Term Loan Credit and Security Agreement (Quantum Corp /De/)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, hereunder and to receive any notice hereunder on behalf of such Borrower or BorrowersBorrower, and hereby authorizes authorises Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to the Borrowers and at their request. Neither Agent nor any Lender shall incur liability to the Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 16.1 except due to willful wilful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint Each Borrower, European and several, and each Borrower U.S. Guarantor shall make payment upon the maturity of the its respective Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Borrower, European and U.S. Guarantor shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, European and U.S. Guarantor, failure of Agent or any Lender to give any Borrower notice of borrowing or Borrower, European and U.S. Guarantor any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, European and U.S. Guarantor, the release by Agent or any Lender of any Collateral Security Asset now or thereafter acquired from any Borrower, European and U.S. Guarantor, and such agreement by each Borrower Borrower, European and U.S. Guarantor to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Borrowers, European and U.S. Guarantors or any Collateral Security Asset for such Borrower’s Borrowers, European and U.S. Guarantors Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Supplement Revolving Multicurrency Credit Agreement (Styrochem U S Inc)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity capacity, whether verbally, in writing or through electronic methods (including, without limitation, an Approved Electronic Communication) to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or BorrowersLoan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders Xxxxxxx to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates the Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersBorrower, and hereby authorizes the Agent to pay over or credit all loan Loan proceeds and other Credit Extensions hereunder in accordance with the request of the Borrowing Agent.
(b) . Although they are separate legal entities that observe all corporate and organizational formalities consistent with such separateness, the Borrowers are part of one consolidated organization constituting a single economic and business enterprise and share an identity of interests such that any benefit received by any Borrower benefits the other Borrowers. The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to the Borrowers and at their request. Neither Agent the Agent, nor any Lender shall incur liability to Borrowers any Borrower or any other Person as a result thereof. To induce the Agent and the Lenders to do so and in consideration thereof, each Borrower hereby indemnifies the Agent and each Lender and holds the Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of the Borrowers as provided herein, reliance by the Agent or any Lender on any request or instruction from the Borrowing Agent or any other action taken by the Agent or any Lender with respect to this Section 15.1 2.17, except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defensesLender.
Appears in 1 contract
Samples: Financing Agreement (Suntron Corp)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates the Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes the Agent to pay over or credit all loan proceeds hereunder in accordance with the request of the Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their requestthe Borrowers. Neither the Agent nor any Lender Bank shall incur liability to the Borrowers as a result thereof. To induce the Agent and Lenders the Banks to do so and in consideration thereof, each Borrower hereby indemnifies the Agent and each Lender Bank and holds Agent and each Lender Bank harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Agent or any Lender Bank by any Person arising from or incurred by reason of the handling of the financing arrangements of the Borrowers as provided herein, reliance by the Agent or any Lender Bank on any request or instruction from the Borrowing Agent or any other action taken by the Agent or any Lender Bank with respect to this Section 15.1 16.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by the Agent or any Lender Bank to any Borrower, failure of the Agent or any Lender Bank to give any Borrower notice of borrowing or any other notice, any failure of the Agent or any Lender Bank to pursue or preserve its rights against any Borrower, the release by the Agent or any Lender Bank of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Agent or any Lender Bank to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
(d) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of Katy and Continental (i) Katy hereof guarantees and agrees in favor of the Agent, for the ratable benefit of the Lenders, to be liable for the payment and performance when due, as surety and guarantor, of all Obligations, and (ii) Continental hereby guarantees and agrees in favor of the Agent, for the ratable benefit of the Lenders, to be liable for the payment and performance when due, as surety and guarantor, of all Obligations of Glit/Gemtex, in the case of both clauses (i) and (ii) hereof, however such Obligations may arise, whether absolute or contingent, matured or unmatured, whether arising under this Agreement or otherwise, in each case without setoff, defense or counterclaim, all of which are hereby irrevocably waived.
(e) For avoidance of doubt, and notwithstanding the provisions of any Other Document, it is expressly understood and agreed by the Agent and the Lenders that neither Glit/Gemtex nor any other Foreign Subsidiary (i) shall have any contingent liability for, and has not guaranteed or otherwise agreed to be liable or act as surety for, whether directly or indirectly, any Obligations of Continental and neither Glit/Gemtex nor any Foreign Subsidiary has pledged any of its Collateral as security for any Obligations of Continental and (ii) shall be required by the Agent or the Lenders to do any of the foregoing.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Katy Industries Inc)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request the Delayed Draw Term Loan, (iii) sign and endorse notes, and (iv) execute and deliver all instruments, documents, writings applications, security agreements and all other agreements, documents, instruments, certificates, notices and further assurances now or hereafter required hereunder, (v) make elections regarding interest rates, and (vi) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or Borrowersthe Loan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers the Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to the willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Term Loan Credit and Security Agreement (Quantum Corp /De/)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Gryphon to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Gryphon shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Gryphon to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Gryphon and holds Agent and each Lender Gryphon harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Gryphon by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Gryphon on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Gryphon with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Gryphon to any BorrowerCompany, failure of Agent or any Lender Gryphon to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Gryphon to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Gryphon of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Gryphon to any Lender to the other Borrowers Company or any Collateral for such Borrower’s Company's Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other's property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Gryphon that (i) the Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of the Companies are closely related to, and substantially benefit, the business and corporate activities of the Companies, (iii) the financial and other operations of the Companies are performed on a combined basis as if the Companies constituted a consolidated corporate group, (iv) the Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 1 contract
Samples: Security Agreement (American Technologies Group Inc)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof.
(d) Each Company expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated. . 07/08/2005 40
(e) Each Borrower waives Company represents and warrants to Laurus that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all suretyship defensesrequests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 1 contract
Samples: Security and Purchase Agreement (360 Global Wine Co)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Administrative Agent or any Lender with respect to this Section 15.1 12.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
(d) Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or any other Person directly or contingently liable for the Obligations hereunder, or against or with respect to any other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and the Obligations are Paid in Full.
Appears in 1 contract
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Laurus that (i) Companies have one or more common equityholders, Board members and officers, (ii) the businesses and corporate activities of the Companies are closely related to, and substantially benefit, the business and corporate activities of the Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if the Companies constituted a consolidated corporate group, (iv) the Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 1 contract
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes the Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither the Agent nor shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce the Agent and Lenders to do so and in consideration thereof, each Borrower Company hereby indemnifies the Agent and each Lender and holds the Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by the Agent or any Lender on any request or instruction from Borrowing Company Agent or any other action taken by the Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 29.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to by the Agent or any Lender to any BorrowerCompany, failure of the Agent or any Lender to give any Borrower Company notice of borrowing or any other notice, any failure of the Agent or any Lender to pursue or to preserve its rights against any BorrowerCompany, the release by the Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by the Agent or to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to the Agent that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 1 contract
Borrowing Agency Provisions. (ai) Each Borrower hereby irrevocably designates Borrowing Agent Vintage Stock to be its attorney and agent and in such capacity to borrow, sign and endorse notes, borrow on behalf of such Borrower hereunder and execute and deliver all instruments, certificates, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower under this Agreement or Borrowersany other Loan Documents, and hereby authorizes Agent Bank to pay over or credit all loan proceeds hereunder of any Loan in accordance with the request of Borrowing Agent.
(b) Vintage Stock. The handling of this the credit facility facilities described herein as a co-borrowing borrower facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Borrower and at their Borrower's request. Neither Agent nor The Bank shall not incur any Lender shall incur liability to Borrowers any Borrower as a result thereof. To induce Agent and Lenders Bank to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender the Bank and holds Agent and each Lender the Bank harmless from and against any and all liabilities, expenses, losses, damages and claims claim of damage or injury asserted against Agent or any Lender the Bank by any Person arising from or incurred by reason of the handling of the financing financial arrangements of Borrowers the Borrower as provided herein, reliance by Agent or any Lender Bank on any request or instruction from Borrowing Agent Parent or any other action taken by Agent or any Lender Bank with respect to this Section 15.1 Section, except due to for those arising from the gross negligence or willful misconduct or gross (not mere) negligence by of the indemnified party (Bank as determined by a court of competent jurisdiction in a by final and non-appealable judgment.
(ii) While any Obligations are outstanding or Bank is obligated to extend credit hereunder, each Borrower expressly subordinates to the payment of the Obligations and waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Borrower may now or hereafter have against any other Borrower or any other Person directly or contingently liable for the Obligations, or against or with respect to any other Borrower’s property (including, without limitation, any property which is Collateral for the Obligations) arising from the existence or performance of this Agreement, until termination of this Agreement and final and irrevocable payment in full of the Obligations (other than contingent indemnification obligations for which no claim has then been made).
(ciii) All Obligations If more than one Person signs this Agreement and the other Loan Documents as a “Borrower”, the obligations of such Persons under this Agreement and the other Loan Documents shall be joint and several. Each obligation, promise, covenant, representation and warranty in this Agreement and the Notes shall be deemed to have been made by, and be binding upon, each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights unless this Agreement and the Notes expressly provide otherwise. The Bank may bring an action against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any whether an action is brought against each other Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Credit Agreement (LIVE VENTURES Inc)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof.
(d) Each Company expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Laurus that (i) Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity. Each Borrower waives all suretyship defenses.Any restriction against intercompany borrowing?
Appears in 1 contract
Samples: Security and Purchase Agreement (Miscor Group, Ltd.)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower Company or BorrowersCompanies, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Companies and at their request. Neither Agent nor any Lender Laurus shall not incur liability to Borrowers Companies as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)paragraph 31.
(c) All Obligations shall be joint and several, and each Borrower Company shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Company shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender Laurus to the other Borrowers Companies or any Collateral for such Borrower’s Company's Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against any other Company or other person or entity directly or contingently liable for the Obligations, or against or with respect to any other Company's property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been paid in full in cash and this Agreement has been irrevocably terminated
(e) Each Company represents and warrants to Laurus that (i) the Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of the other Companies are closely related to, and substantially benefit, the business and corporate activities of such Company, (iii) the financial and other operations of the Companies are performed on a combined basis as if the Companies constituted a consolidated corporate group, (iv) such Company will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Revolving Credit Advance hereunder, in each case, whether or not such amount is used directly by such Company and (v) all requests for Revolving Credit Advance hereunder by the Company Agent are for the exclusive and indivisible benefit of each Company as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 1 contract
Samples: Purchase and Security Agreement (Jmar Technologies Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) sign and endorse notes, and (iii) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (iv) make elections regarding interest rates and (v) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Term Loan Credit and Security Agreement (Hudson Technologies Inc /Ny)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Administrative Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor Agents and Lenders shall not incur any Lender shall incur liability to Borrowers as a result thereof. To induce Agent Agents and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies each Agent and each Lender and holds each Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against any Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by any Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by any Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and or forbearance granted to by Administrative Agent or any Lender to any Borrower, failure of any Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of any Agent or any Lender to pursue or preserve its rights against any Borrower, the release by any Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by any Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Skullcandy, Inc.)
Borrowing Agency Provisions. 48-
(a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with the issuer thereof upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the other Loan Documents, all on behalf of and in the name such Borrower or BorrowersBorrower, and hereby authorizes Agent Lender to pay over or credit all loan Loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall not incur liability to Borrowers any Borrower as a result thereof. To induce Agent and Lenders Lender to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 10.18 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any by Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Loan and Security Agreement (Transact Technologies Inc)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent Borrowing Agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor None of Agent, any Issuing Lender or any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and the Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent Agent, each Issuer and each Lender and holds Agent Agent, each Issuer and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent Agent, any Issuer or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 8A.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent Lender to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall not incur liability to Borrowers as a result thereof. To induce Agent and Lenders Lender to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Allied Motion Technologies Inc)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 30.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such BorrowerCompany’s Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Laurus that (i) Companies have one or more common stockholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group, (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 1 contract
Samples: Security Agreement (Kitty Hawk Inc)
Borrowing Agency Provisions. (a) Each Borrower Loan Party hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, writings applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other agreements, documents, instruments, certificates, notices and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with the applicable Issuer upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the Other Documents, all on behalf of and in the name such Borrower Loan Party or Borrowersthe Loan Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Loan Parties and at their request. Neither Agent nor any Lender shall incur liability to Borrowers the Loan Parties as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower Loan Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Loan Parties as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to the willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower Loan Party shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower Loan Party shall in no way be affected by any extensions, renewals and forbearance granted to by Agent or any Lender to any BorrowerLoan Party, failure of Agent or any Lender to give any Borrower Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any BorrowerLoan Party, the release by Agent or any Lender of any Collateral now or thereafter acquired from any BorrowerLoan Party, and such agreement by each Borrower Loan Party to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers Loan Parties or any Collateral for such BorrowerLoan Party’s Obligations or the lack thereof. Each Borrower Loan Party waives all suretyship defenses.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Quantum Corp /De/)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with the issuer thereof upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the other Loan Documents, all on behalf of and in the name such Borrower or BorrowersBorrower, and hereby authorizes Agent Lender to pay over or credit all loan Loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to the Borrowers and at their request. Neither Agent nor any Lender shall not incur liability to Borrowers any Borrower as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any by Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Loan and Security Agreement (FreightCar America, Inc.)
Borrowing Agency Provisions. (a) Parent and Canadian Subsidiary are co-borrowers under this Agreement. Each Borrower of Parent and Canadian Subsidiary hereby irrevocably designates Borrowing Agent Parent, acting through Parent’s duly authorized officers, to be its Canadian Subsidiary’s attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersParent and Canadian Subsidiary, and hereby authorizes Agent Lender to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing AgentParent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Parent and Canadian Subsidiary and at their request. Neither Agent nor any Lender shall not incur any liability to Borrowers any Borrower as a result thereof. To induce Agent and Lenders Lender to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of the Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent Parent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)2.6.
(c) All Obligations shall be the joint and several, and each Borrower several obligations of the Borrowers. The Borrowers shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Borrowers shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, the failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, Borrower or the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower.
(d) Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Borrower may now or hereafter have against the other Borrower or against any other Person directly or contingently liable for the Obligations until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Borrower represents and warrants to Lender that (i) the Borrowers have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of the Borrowers are closely related to, and such agreement by substantially benefit, the business and corporate activities of the consolidated group of which the Borrowers are members, (iii) each Borrower to pay upon any notice issued pursuant thereto will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is unconditional used directly by such Borrower and unaffected (iv) all requests for Loans hereunder by prior recourse by Agent or any Lender to Borrower are for the other exclusive and indivisible benefit of the Borrowers or any Collateral as though, for such Borrower’s Obligations or purposes of this Agreement, the lack thereof. Each Borrower waives all suretyship defensesBorrowers constituted a single entity.
Appears in 1 contract
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Administrative Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent Borrowing Agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Administrative Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s 's Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Comforce Corp)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates the Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or the Borrowers, and hereby authorizes the Agent to pay over or credit all loan proceeds hereunder in accordance with the request of the Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to the Borrowers and at their request. Neither Agent nor the Agent, any Lender nor the Issuer shall incur liability to the Borrowers as a result thereof. To induce Agent the Agent, the Lenders and Lenders the Issuer to do so and in consideration thereof, each Borrower hereby indemnifies Agent and the Agent, each Lender and the Issuer and holds Agent and the Agent, each Lender and the Issuer harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or the Agent, any Lender or the Issuer by any Person arising from or incurred by reason of the handling of the financing arrangements of the Borrowers as provided herein, reliance by Agent or the Agent, any Lender or the Issuer on any request or instruction from the Borrowing Agent or any other action taken by Agent or the Agent, any Lender or the Issuer with respect to this Section 15.1 14.13 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)party.
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or the Agent, any Lender or the Issuer to any Borrower, failure of Agent or the Agent, any Lender or the Issuer to give any Borrower notice of borrowing or any other notice, any failure of Agent or the Agent, any Lender or the Issuer to pursue or preserve its rights against any Borrower, the release by Agent or the Agent, any Lender or the Issuer of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or the Agent, any Lender or the Issuer to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses. Without limiting the generality of the foregoing, each of the Borrowers hereby acknowledges and agrees that any and all actions, inactions or omissions by any one or more, or all, of the Borrowers in connection with, related to or otherwise affecting this Agreement or any of the Other Documents are the obligations of, and inure to and are binding upon, each and all of the Borrowers, jointly and severally.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Lesco Inc/Oh)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).. 074658.01845/123458281v.1
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (SMTC Corp)
Borrowing Agency Provisions. (a) Each Borrower Company hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or BorrowersCompany, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers the Companies and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers any Company as a result thereof. To induce Agent and Lenders Laurus to do so and in consideration thereof, each Borrower Company hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers the Companies as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower the Companies shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower the Companies shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender by Laurus to any BorrowerCompany, failure of Agent or any Lender Laurus to give any Borrower 37 Company notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against any BorrowerCompany, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from any BorrowerCompany, and such agreement by each Borrower any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or Laurus to any Lender to the other Borrowers Company or any Collateral for such Borrower’s Company's Obligations or the lack thereof. .
(d) Each Borrower Company expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Obligations, or against or with respect to any other's property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been indefeasibly paid in full and this Agreement has been irrevocably terminated.
(e) Each Company represents and warrants to Laurus that (i) the Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of the Companies are closely related to, and substantially benefit, the business and corporate activities of the Companies, (iii) the financial and other operations of the Companies are performed on a combined basis as if the Companies constituted a consolidated corporate group, (iv) the Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Company and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of the Companies as though, for purposes of this Agreement, the Companies constituted a single entity.
Appears in 1 contract
Samples: Security and Purchase Agreement (Proxymed Inc /Ft Lauderdale/)
Borrowing Agency Provisions. (a) Each Borrower of Company and each Eligible Subsidiary hereby irrevocably designates Borrowing Company Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower Company or BorrowersEligible Subsidiary, and hereby authorizes Agent Laurus to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Company Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers Company and each Eligible Subsidiary and at their request. Neither Agent nor Laurus shall not incur any Lender shall incur liability to Borrowers Company or any Eligible Subsidiary as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower of Company and each Eligible Subsidiary hereby indemnifies Agent and each Lender Laurus and holds Agent and each Lender Laurus harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender Laurus by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers Company and each Eligible Subsidiary as provided herein, reliance by Agent or any Lender Laurus on any request or instruction from Borrowing Company Agent or any other action taken by Agent or any Lender Laurus with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)Paragraph 28.
(c) All Obligations shall be joint and several, and each Borrower of Company and each Eligible Subsidiary shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of Company and each Borrower Eligible Subsidiary shall in no way be affected by any extensions, renewals and forbearance granted by Laurus to Agent Company or any Lender to any BorrowerEligible Subsidiary, failure of Agent Laurus to give Company or any Lender to give any Borrower Eligible Subsidiary notice of borrowing or any other notice, any failure of Agent or any Lender Laurus to pursue or to preserve its rights against Company or any BorrowerEligible Subsidiary, the release by Agent or any Lender Laurus of any Collateral now or thereafter acquired from Company or any BorrowerEligible Subsidiary, and such agreement by each Borrower Company or any Eligible Subsidiary to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent Laurus to Company or any Lender to the other Borrowers Eligible Subsidiary or any Collateral for such BorrowerCompany’s or any Eligible Subsidiary’s Obligations or the lack thereof. .
(d) Each Borrower of Company and each Eligible Subsidiary expressly waives any and all suretyship defensesrights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which Company and such Eligible Subsidiary may now or hereafter have against the other or other person or entity directly or contingently liable for the Obligations, or against or with respect to any other’s property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until all Obligations have been paid in full and this Agreement has been irrevocably terminated.
(e) Each of Company and each Eligible Subsidiary represents and warrants to Laurus that (i) Company and each Eligible Subsidiary have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of the Company and each Eligible Subsidiary are closely related to, and substantially benefit, the business and corporate activities of Company and each Eligible Subsidiary, (iii) the financial and other operations of Company and each Eligible Subsidiary are performed on a combined basis as if Company and each Eligible Subsidiary constituted a consolidated corporate group, (iv) Company and each Eligible Subsidiary will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by Company or any such Eligible Subsidiary and (v) all requests for Loans hereunder by the Company Agent are for the exclusive and indivisible benefit of Company and each Eligible Subsidiary as though, for purposes of this Agreement, Company and each Eligible Subsidiary constituted a single entity.
Appears in 1 contract
Samples: Security and Purchase Agreement (Maxim Mortgage Corp/)
Borrowing Agency Provisions. (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, and (v) execute and deliver all instruments, documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give instructions regarding Letters of Credit and agree with the issuer thereof upon any amendment, extension or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the other Loan Documents, all on behalf of and in the name such Borrower or BorrowersBorrower, and hereby authorizes Agent Lender to pay over or credit all loan Loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to the Borrowers and at their request. Neither Agent nor any Lender shall not incur liability to Borrowers any Borrower as a result thereof. To induce Agent and Lenders Lender to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 10.18 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any by Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Appears in 1 contract
