Common use of Borrowing Agency Provisions Clause in Contracts

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 it, together with each other Borrower, 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, Borrowers 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 any one Borrower pursuant hereto 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 pursuant hereto on a collective basis. (b) Each Borrower hereby irrevocably designates Borrowing 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, collectively, and hereby authorizes Lender to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Representative. (c) The handling of this credit facility as a co-borrowing facility with a Borrowing Representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. None of the Lender Parties shall incur any liability to Borrowers as a result thereof. To induce the Lender Parties to do so and in consideration thereof, each Borrower hereby indemnifies the Lender Parties and holds the Lender Parties harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Lender Parties by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by any of the Lender Parties on any request or instruction from Borrowing Representative or any other action taken by any of the Lender Parties with respect to this Section except due to willful misconduct or gross (not mere) negligence by the indemnified party. (d) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations, whether 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 by Lender to any Borrower, failure of Lender to give any Borrower notice of borrowing or any other notice, any failure of Lender to pursue or preserve its rights against any Borrower, the release by 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 Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof.

Borrowing Agency Provisions. If and to the extent that at any time or from time to time there are multiple Borrowers, then: (a) Each At the request of, and solely as an accommodation to, Borrowers, the Lenders have agreed to make the Loans to, and to issue Letters of Credit for the FMC Borrowers and the FRC Borrowers on a joint and several basis as co-borrowers. In order to facilitate the co-borrowing arrangement, each FMC Borrower acknowledges that ithereby irrevocably designates Holdings to be its agent and attorney-in-fact for purposes of the Loan Documents, and each FRC Borrower hereby irrevocably designates Retail to be its agent and attorney-in-fact for purposes of the Loan Documents, and each of them hereby irrevocably authorizes such agent in such capacity to take such actions on behalf of the applicable FMC Borrower or FRC Borrower, as the case may be, and to exercise such powers under this Agreement and the other Loan Documents on such Borrower's behalf as may otherwise be exercised by such Borrower, together with each such powers as are incidental thereto, including without limitation to borrow Loans, to execute and deliver Notices of Borrowing, Notices of Conversion/Continuation, requests for Letters of Credit, Borrowing Base Certificates and such other Borrowerdocuments, make up a related organization instruments and certificates required by the Loan Documents in connection with any Borrowing or repayment of various entities constituting a single economic the Loans, to borrow, repay, reborrow, convert and business enterprise continue Loans and sharing a substantial identity to receive proceeds of interests Loans and to give all other notices and consents hereunder. Each Borrower further irrevocably authorizes the Agent to act on all such thatdocuments, without limitationinstruments and certificates delivered by such agents and attorneys-in-fact, Borrowers render services and to pay over and credit the proceeds of any Loans so requested to the Designated Account of FMC or FRC, as applicable. Each of Holdings and Retail hereby accepts the appointment to act as agent and attorney in fact for the benefit of each other, purchase or sell FMC Borrowers 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 any one Borrower pursuant hereto 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 FRC Borrowers, as a groupthe case may be. The Agent and each Lender shall be entitled to rely absolutely on the appointment and authorization of Holdings to act on behalf of the FMC Borrowers and of Retail to act on behalf of the FRC Borrowers with respect to all matters relating to this Agreement and the other Loan Documents, applying whether or not any provision of this Agreement or any other Loan Documents specifically provides that action may or shall be taken by Holdings or Retail on behalf of the FMC Borrowers or the FRC Borrowers. The Agent and the Lenders may give all notices to any FMC Borrower to Holdings and to any FRC Borrower to Retail. Each Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by Holdings or Retail, as the case may be, shall be deemed for credit or other financial accommodations pursuant hereto on a collective basisall purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower. (b) Each Borrower hereby irrevocably designates Borrowing Representative All Borrowers acknowledge and agree that the Borrowers are engaged in an integrated operation that requires financing on the basis of credit availability to be its attorney and agent and in such capacity to borroweach Borrower, 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, collectively, and hereby authorizes Lender to pay over or credit all loan proceeds hereunder in accordance with that the co-borrowing arrangement has been established at the request of Borrowing Representative. (c) The handling the Borrowers, and that each Borrower expects to derive, directly or indirectly, benefit from such credit availability to the other Borrowers. Neither the Agent nor the Letter of this credit facility as a co-borrowing facility with a Borrowing Representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. None of the Credit Issuer nor any Lender Parties shall incur any liability to Borrowers or any other Loan Party as a result thereofof the co-borrowing arrangement established by this Agreement and shall not have any liability or responsibility to the Borrowers to inquire into the allocation, apportionment or use of the proceeds of any Loans or extensions of credit hereunder. To induce the Lender Parties Agent, the Letter of Credit Issuer and the Lenders to do so establish this co-borrowing arrangement and in consideration thereof, each Borrower hereby indemnifies the Lender Parties Agent, the Letter of Credit Issuer and holds the Lender Parties Lenders, and their respective successors and assigns, and agrees to hold each of them harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Lender Parties them by any Person arising from or incurred by reason of the handling of the financing arrangements of the Borrowers as provided hereinin this Agreement, any reliance by the Agent, the Letter of Credit Issuer or any of the Lender Parties on any document, request or instruction from Borrowing Representative given by the agents designated by the FMC Borrowers and the FRC Borrowers herein to act on their behalf or any other action taken by the Agent, the Letter of Credit Issuer or the Lenders with respect to the co-borrowing arrangement; PROVIDED, HOWEVER, that no Borrower shall have an obligation to indemnify any of the Agent, the Letter of Credit Issuer or any Lender Parties under this SECTION 1.7 with respect to this Section except due any liabilities finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence or willful misconduct or gross (not mere) negligence by the of such indemnified party. (d) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity . The agreements of the Borrowers contained in this SECTION 1.7 shall survive payment of all other Obligations, whether 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 by Lender to any Borrower, failure of Lender to give any Borrower notice of borrowing or any other notice, any failure of Lender to pursue or preserve its rights against any Borrower, the release by 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 Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof.

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 it, together with each other Borrower, 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, Borrowers 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 any one Borrower pursuant hereto 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 pursuant hereto on a collective basis. (b) Each Borrower hereby irrevocably designates Borrowing Representative 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, collectively, and hereby authorizes Lender Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing RepresentativeAgent. (cb) The handling of this credit facility as a co-borrowing facility with a Borrowing Representative borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. None of the , and neither Agent nor any Lender Parties shall incur any liability to Borrowers any Borrower as a result thereof. In order to utilize the financial powers of each Borrower in the most efficient and economical manner, and in order to facilitate the financing of each Borrower's needs, Lenders will, at the request of the Borrowing Agent, make Advances and other financial accommodations to all Borrowers on a combined basis and in accordance with the provisions set forth in this Agreement. Borrowers acknowledge that their business is a mutual and collective enterprise and Borrowers believe that the consolidation of all Advances and other financial accommodations under this Agreement will enhance the aggregate borrowing powers of each Borrower and ease the administration of their loan relationship with Lenders, all to the mutual advantage of Borrowers. Agent's and Lenders' willingness to extend credit to Borrowers pursuant to the terms hereof and to administer each Borrower's portion of the Collateral therefor, on a combined basis as more fully set forth in this Agreement, is done solely as an accommodation to Borrowers, at their request and in furtherance of their mutual and collective enterprise. To induce the Lender Parties Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies the Agent and each Lender Parties and holds the Agent and each Lender Parties harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Agent or any Lender Parties 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 of the Lender Parties on any request or instruction from Borrowing Representative Agent 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. (dc) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations, whether 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 by 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. (d) Each Borrower's joint and several liability hereunder with respect to the Advances and other Obligations shall, to the fullest extent permitted by Applicable Law, be unconditional irrespective of (i) the validity, enforceability, avoidance or subordination of any of the Obligations or of any promissory note or other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to collect any of the Obligations from any other Borrower or Guarantor or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by Agent or any Lender with respect to any of the Obligations or any instrument or agreement evidencing or securing the payment of any of the Obligations, or any other agreement now or hereafter executed by any other Borrower and delivered to Agent or any Lender, (iv) the failure by Lender to take any steps to perfect or maintain the perfected status of its security interest in or Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Obligations, or Agent's or any Lender's release of any Collateral or of its Liens upon any Collateral, (v) Agent's or any Lenders' election, in any proceeding instituted under the Bankruptcy Code, for the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the release or compromise, in whole or in part, of the liability of any Borrower or Guarantor for the payment of any of the Obligations, (viii) any amendment or modification of any of the Loan Documents or waiver of any Default or Event of Default thereunder, (ix) any increase in the amount of the Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, or any decrease in the same, (x) the disallowance of all or any portion of Lender's claims for the repayment of any of the Obligations under Section 502 of the Bankruptcy Code, or (xi) any other circumstance that might constitute a legal or equitable discharge or defense of any Borrower and Guarantor. At any time an Event of Default exists, Lender may proceed directly and at once, without notice to any Borrower or Guarantor, against any or all of Borrowers or Guarantors to collect and recover all or any part of the Obligations, without first proceeding against any other Borrower or Guarantor or against any Collateral or other security for the payment or performance of any of the Obligations, and each Borrower waives any provision that might otherwise require Agent or any Lender under Applicable Law to pursue or exhaust its remedies against any Collateral or any other Borrower or Guarantor before pursuing such Borrower. Each Borrower consents and agrees that Agent and any Lender shall be under no obligation to xxxxxxxx any assets in favor of any Borrower or Guarantor or against or in payment of any or all of the Obligations. (e) Each Borrower is unconditionally obligated to repay the Obligations as a joint and several obligor under this Agreement. If, as of any date, the aggregate amount of payments made by a Borrower on account of the Obligations and proceeds of such Borrower's Collateral that are applied to the Obligations exceeds the aggregate amount of Advances actually used by such Borrower in its business (such excess amount being referred to as an "Accommodation Payment"), then each of the other Borrowers shall be obligated to make contribution to such Borrower (the "Paying Borrower") in an amount equal to (A) the product derived by multiplying the sum of each Accommodation Payment of each Borrower by the Allocable Percentage of the Borrower from whom contribution is sought minus (B) the amount, if any, of the then outstanding Accommodation ----- Payment of such Contributing Borrower (such last mentioned amount which is to be subtracted from the aforesaid product to be increased by any amounts theretofore paid by such

Borrowing Agency Provisions. If and to the extent that at any time or from time to time there are multiple Borrowers, then: (a) Each At the request of, and solely as an accommodation to, Borrowers, the Lenders have agreed to make the Loans to, and to issue Letters of Credit for the FMC Borrowers and the FRC Borrowers on a joint and several basis as co-borrowers. In order to facilitate the co-borrowing arrangement, each FMC Borrower acknowledges that ithereby irrevocably designates Holdings to be its agent and attorney-in-fact for purposes of the Loan Documents, and each FRC Borrower hereby irrevocably designates Retail to be its agent and attorney-in-fact for purposes of the Loan Documents, and each of them hereby irrevocably authorizes such agent in such capacity to take such actions on behalf of the applicable FMC Borrower or FRC Borrower, as the case may be, and to exercise such powers under this Agreement and the other Loan Documents on such Borrower’s behalf as may otherwise be exercised by such Borrower, together with each such powers as are incidental thereto, including without limitation to borrow Loans, to execute and deliver Notices of Borrowing, Notices of Conversion/Continuation, requests for Letters of Credit, Borrowing Base Certificates and such other Borrowerdocuments, make up a related organization instruments and certificates required by the Loan Documents in connection with any Borrowing or repayment of various entities constituting a single economic the Loans, to borrow, repay, reborrow, convert and business enterprise continue Loans and sharing a substantial identity to receive proceeds of interests Loans and to give all other notices and consents hereunder. Each Borrower further irrevocably authorizes the Agent to act on all such thatdocuments, without limitationinstruments and certificates delivered by such agents and attorneys-in-fact, Borrowers render services and to pay over and credit the proceeds of any Loans so requested to the Designated Account of FMC or FRC, as applicable. Each of Holdings and Retail hereby accepts the appointment to act as agent and attorney in fact for the benefit of each other, purchase or sell FMC Borrowers 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 any one Borrower pursuant hereto 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 FRC Borrowers, as a groupthe case may be. The Agent and each Lender shall be entitled to rely absolutely on the appointment and authorization of Holdings to act on behalf of the FMC Borrowers and of Retail to act on behalf of the FRC Borrowers with respect to all matters relating to this Agreement and the other Loan Documents, applying whether or not any provision of this Agreement or any other Loan Documents specifically provides that action may or shall be taken by Holdings or Retail on behalf of the FMC Borrowers or the FRC Borrowers. The Agent and the Lenders may give all notices to any FMC Borrower to Holdings and to any FRC Borrower to Retail. Each Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by Holdings or Retail, as the case may be, shall be deemed for credit or other financial accommodations pursuant hereto on a collective basisall purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower. (b) Each Borrower hereby irrevocably designates Borrowing Representative All Borrowers acknowledge and agree that the Borrowers are engaged in an integrated operation that requires financing on the basis of credit availability to be its attorney and agent and in such capacity to borroweach Borrower, 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, collectively, and hereby authorizes Lender to pay over or credit all loan proceeds hereunder in accordance with that the co-borrowing arrangement has been established at the request of Borrowing Representative. (c) The handling the Borrowers, and that each Borrower expects to derive, directly or indirectly, benefit from such credit availability to the other Borrowers. Neither the Agent nor the Letter of this credit facility as a co-borrowing facility with a Borrowing Representative in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. None of the Credit Issuer nor any Lender Parties shall incur any liability to Borrowers or any other Loan Party as a result thereofof the co-borrowing arrangement established by this Agreement and shall not have any liability or responsibility to the Borrowers to inquire into the allocation, apportionment or use of the proceeds of any Loans or extensions of credit hereunder. To induce the Lender Parties Agent, the Letter of Credit Issuer and the Lenders to do so establish this co-borrowing arrangement and in consideration thereof, each Borrower hereby indemnifies the Lender Parties Agent, the Letter of Credit Issuer and holds the Lender Parties Lenders, and their respective successors and assigns, and agrees to hold each of them harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Lender Parties them by any Person arising from or incurred by reason of the handling of the financing arrangements of the Borrowers as provided hereinin this Agreement, any reliance by the Agent, the Letter of Credit Issuer or any of the Lender Parties on any document, request or instruction from Borrowing Representative given by the agents designated by the FMC Borrowers and the FRC Borrowers herein to act on their behalf or any other action taken by the Agent, the Letter of Credit Issuer or the Lenders with respect to the co-borrowing arrangement; provided, however, that no Borrower shall have an obligation to indemnify any of the Agent, the Letter of Credit Issuer or any Lender Parties under this Section 1.7 with respect to any liabilities finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence or willful misconduct of such indemnified party. The agreements of the Borrowers contained in this Section except due to willful misconduct or gross (not mere) negligence by the indemnified party1.7 shall survive payment of all other Obligations. (d) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations, whether 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 by Lender to any Borrower, failure of Lender to give any Borrower notice of borrowing or any other notice, any failure of Lender to pursue or preserve its rights against any Borrower, the release by 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 Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof.