Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations. (b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them. (c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation. (d) The Obligations of each of the Borrowers under the provisions of this §4.11 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever. (e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders. (f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 6 contracts
Samples: Revolving Credit and Term Loan Agreement (Life Storage Lp), Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc), Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 4.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 4.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 4.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section 4.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section 4.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section 4.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersBanks.
(f) The provisions of this §4.11 Section 4.12 are made for the benefit of the Lenders Banks and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Lenders Banks first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 4.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 4.12 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 4 contracts
Samples: Revolving Credit Agreement (Waste Connections Inc/De), Revolving Credit Agreement (Waste Connections Inc/De), Revolving Credit Agreement (Waste Connections Inc/De)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under for all of the other Loan Documents Obligations in consideration of the financial accommodations to be provided by the Administrative Agent, the L/C Issuers and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsObligations of the Borrowers.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this §4.11Section), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 10.12 constitute full recourse Obligations obligations of each of the Borrowers such Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, to the fullest extent permitted by Applicable Law, irrespective of the validity, regularity or enforceability of this Credit Agreement against any other Borrower or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, any L/C Issuer or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable lawApplicable Law and except as to notices expressly provided for in the Loan Documents, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by Applicable Law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lenders, the Administrative Agent or the L/C Issuers at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Lenders, the Administrative Agent or the L/C Issuers in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, to the fullest extent permitted by law, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Lenders, the Administrative Agent or the L/C Issuers with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws Applicable Laws or regulations thereunder, which might, but for the provisions of this §4.11Section, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuers. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuers.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under this Agreement (the “Benefit Amount”), then such Borrower, after the Full Payment of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been Fully Paid. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior Full Payment of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the Applicable Laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be Fully Paid before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders, the L/C Issuers or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been Fully Paid. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders, any L/C Issuer or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior Full Payment of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the Applicable Laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be Fully Paid before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior Full Payment of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been Fully Paid. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before Full Payment of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the relevant Lenders (in accordance with each such Lender’s Applicable Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(i) The provisions of this §4.11 Section 10.12 are made for the benefit of the Administrative Agent, the L/C Issuers and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent, any L/C Issuer or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 10.12 shall remain in effect until all of the Obligations shall have been paid in full Fully Paid or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent, any L/C Issuer or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 Section 10.12 will forthwith be reinstated in effect, as though such payment had not been made.
(j) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Agreement or the other Loan Documents, including, without limitation, with respect to any Loan Notice, Letter of Credit Application and Compliance Certificates and pursuant to Section 10.02 of this Agreement.
(k) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Agreement shall be valid and enforceable against the Borrowers to the maximum extent permitted by Applicable Law. Accordingly, if any provision of this Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Agreement to be in excess of those permitted under any Applicable Law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers’ obligations under this Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such Applicable Law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 4 contracts
Samples: Credit Agreement (Casella Waste Systems Inc), Specified Acquisition Loan Joinder (Casella Waste Systems Inc), Credit Agreement (Casella Waste Systems Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a primary obligor and co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 2.05), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then then, in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 2.05 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and any promissory note issued hereunder, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Loan Documents), or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all surety ship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Each Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security, guaranty or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing or guaranty supporting the Obligations, including, without limitation, the failure to protect or preserve any rights which any Administrative Agent or any Lender may have in such collateral security or guaranty or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason any other Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any other Borrower by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 2.05, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 2.05, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 2.05 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 2.05 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrowers and that each such Borrower will look to the other Borrowers and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in the Lendersother Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 Section 2.05 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Administrative Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any the other Borrower Borrowers or to exhaust any remedies available to it or them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 2.05 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfiedsatisfied and all Commitments terminated. If at any time, any payment, or any part thereof, thereof made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2.05 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been indefeasibly paid in full in cash and all Commitments terminated. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations and the termination of the all Commitments. Each Borrower hereby agrees that after the occurrence and during the continuance of any Event of Default, unless the Administrative Agent otherwise agrees, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent on account of the Obligations and shall be paid promptly after receipt to the Administrative Agent.
Appears in 4 contracts
Samples: Second Amendment (KKR & Co. Inc.), 364 Day Revolving Credit Agreement (KKR & Co. Inc.), First Amendment (KKR & Co. L.P.)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligationsobligations of each other Borrower.
(b) Each of the Borrowers, Borrower jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 9.18 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided herein or in this Credit Agreementany other Loan Documents, each of Borrower hereby waives, to the Borrowers hereby waives fullest extent permitted by applicable law, notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement; provided that such waiver shall not apply to those notice, consent and other rights of such Borrower that were negotiated in good faith by the parties hereto and are expressly set forth in this Agreement for the benefit of such Borrower. Each of the Borrowers Borrower hereby assents to, and waives waives, to the fullest extent permitted by Applicable Law, notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers other Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowersother Borrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 9.18, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11, Section 9.18 it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 9.18 shall not be discharged except by performance and then only to the extent of such performance. The To the fullest extent permitted by applicable law, the Obligations of each of the Borrowers Borrower under this §4.11 Section 9.18 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of other Borrower or any Lender, and the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 9.18 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 9.18 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 9.18 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code), after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Borrower under applicable law.
Appears in 3 contracts
Samples: Credit Agreement (Hecla Mining Co/De/), Credit Agreement (Hecla Mining Co/De/), Credit Agreement (Hecla Mining Co/De/)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Related Documents in consideration of the financial accommodations to be provided by the Lenders Lender and the Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each the other Borrower to accept joint and several liability for the Obligations.
(b) Each of the BorrowersBorrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a primary obligor and co-debtor, joint and several liability with the other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 9.16), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers either Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then then, in each such event event, the other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 9.16 constitute the full recourse Obligations of each of the Borrowers Borrower enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Related Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any Loans and all Advances made under this Credit Agreement and any promissory note issued hereunder, notice of occurrence of any Potential Event of Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Related Documents), or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders Agent or the Lender under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Related Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all surety ship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Agent and the Lender at any time or times in respect of any default by any of the Borrowers either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Related Documents, any and all other indulgences whatsoever by the Lenders Agent and the Lender in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of either Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Each Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Agent or the Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which any Agent or the Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason the other Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from the other Borrower by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Agreement and the other Related Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 9.16, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 9.16, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 9.16 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 9.16 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of reconstruction or similar proceeding with respect to the Borrowers other Borrower, or the LendersLender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any either Borrower or the Lender. Each Borrower acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrower on a continuing basis all information desired by such Borrower concerning the financial condition of the Borrowers other Borrower and that each such Borrower will look to the other Borrower and not to the Agent or the LendersLender in order for such Borrower to keep adequately informed of changes in the other Borrower’s respective financial conditions.
(f) The provisions of this §4.11 Section 9.16 are made for the benefit of the Lenders Lender and the Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lender, the Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any the other Borrower or to exhaust any remedies available to it or them against any the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 9.16 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, ; made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Lender or the Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowerseither Borrower, or otherwise, the provisions of this §4.11 Section 9.16 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each Borrower hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrower with respect to any liability incurred by it hereunder or under any of the other Related Documents, any payments made by it to the Lender or the Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been indefeasibly paid in full in cash. Any claim which either Borrower may have against the other Borrower with respect to any payments to the Lender or the Agent hereunder or under any other Related Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to either Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to the other Borrower therefore.
(h) Each Borrower hereby agrees that the payment of any amounts due with respect to the indebtedness owing by either Borrower to the other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Potential Event of Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of the other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Agent and be paid over to the Agent for the account of the Lender to be applied to repay the Obligations.
Appears in 3 contracts
Samples: Credit and Security Agreement, Credit and Security Agreement (GWG Holdings, Inc.), Credit and Security Agreement (GWG Holdings, Inc.)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder with respect to the Loans, the Letters of Credit and under the other Loan Documents Obligations in consideration of the financial accommodations to be provided by the Administrative Agent and Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the obligations of each of them in respect of such Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each obligations of the Borrowers without preferences or distinction among them, whether such Loans were made or Letters of Credit issued before, on or after the Effective Date.
(c) If and to the extent that any either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or shall fail to perform any of the such Obligations in accordance with the terms thereof, then in each such event the each other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 6.11 constitute full recourse Obligations the absolute and unconditional obligations of each of the Borrowers such Borrower enforceable against each such Person it to the full extent of its properties and assetspermitted under the terms hereof, irrespective of the validity, regularity or enforceability of this Credit Agreement or any of the other Loan Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any the Loans made under this Credit Agreement, notice of the issuance of any Letter of Credit, notice of the occurrence of any Default or Event of Default (except as otherwise expressly provided for herein), or of any demand for any payment under this Credit Agreement or any of the other Loan Documents, notice of any action (except as otherwise provided for herein) at any time taken or omitted by the Lenders Administrative Agent or any Lender under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind (except as otherwise provided for herein) in connection with this Credit AgreementAgreement or any of the other Loan Documents. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Administrative Agent or any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement or any of the other Loan Documents, any and all other indulgences whatsoever by the Lenders Administrative Agent or any Lender in respect of any of the Obligationsobligations hereunder or under the other Loan Documents, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations such obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of Borrower assents to the Borrowers assents extent permitted by applicable law to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by Administrative Agent or any of the Borrowers to comply with any of its respective Obligations, Lender including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.116.11, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations under this §4.11hereunder, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Borrower hereunder shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of Borrower, the Borrowers Administrative Agent or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfiedLender. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of any either of the Borrowers, or otherwise, the provisions of this §4.11 6.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 2 contracts
Samples: Credit Agreement (Crystal Rock Holdings, Inc.), Credit Agreement (Vermont Pure Holdings LTD/De)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 14.19 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.19 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 14.19(h) shall be subordinate and subject in right of payment to the prior payment in full of the Obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this Section 14.19(h), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair salable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of the Closing Date (if any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of this Section 14.19(h) such subsequent Borrower shall be deemed to have been a Borrower as of the Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the Closing Date).
Appears in 2 contracts
Samples: Credit Agreement (Nationsrent Companies Inc), Credit Agreement (Nationsrent Companies Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers a Borrower shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligationobligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 11.21 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Loans made Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or any failure to act on the part of the Lenders with respect to Administrative Agent or the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 11.21, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 11.21, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 11.21 shall not be discharged except by performance and then only to the extent of such performance. The Obligations obligations of each of the Borrowers Borrower under this §4.11 Section 11.21 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers reconstruction or similar proceeding with respect to any Borrower or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lenders.
(f) The provisions of this §4.11 Section 11.21 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor therefore may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any other Borrower or to exhaust any remedies available to them it against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 11.21 shall remain in effect until all of the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 11.21 will forthwith be reinstated and in effect, effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents or Swap Contracts or Treasury Management Agreements, the obligations of each Borrower hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable Debtor Relief Law.
Appears in 2 contracts
Samples: Credit Agreement (Brady Corp), Credit Agreement (Brady Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a primary obligor and co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 2.14), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then then, in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 2.14 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and any promissory note issued hereunder, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all surety ship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which any Administrative Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason any other Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any other Borrower by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 2.14, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 2.14, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 2.14 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 2.14 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrowers and that each such Borrower will look to the other Borrowers and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in the Lendersother Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 Section 2.14 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Administrative Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any the other Borrower Borrowers or to exhaust any remedies available to it or them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 2.14 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, ; made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender or any Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2.14 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been indefeasibly paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefore.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
Appears in 2 contracts
Samples: Credit Agreement (KKR Financial Holdings LLC), Credit Agreement (KKR Financial Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Agents, the Acceptance Bank, the Issuing Bank and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligations.
(b) obligations of each of them. Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each all of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event the each other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) . The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 ss.5.11 constitute full recourse Obligations the absolute and unconditional obligations of each of the Borrowers such Borrower enforceable against each such Person it to the full extent of its properties and assetspermitted under the terms hereof, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) . Except as otherwise expressly provided in this Credit Agreementfor herein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any the Loans made under this Credit Agreement, notice of the occurrence of any Default or Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent, the Acceptance Bank, the Issuing Bank or the Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent, the Acceptance Bank, the Issuing Bank or the Lenders at any time or times in respect of any default by any of the Borrowers Obligor in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Agent, the Acceptance Bank, the Issuing Bank or the Lenders in respect of any of the Obligationsobligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations such obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersObligor. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Agent, the Acceptance Bank, the Issuing Bank or the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.5.11, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations under this §4.11ss.5.11, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers Borrower under this §4.11 ss.5.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of Obligor or the Borrowers Agent, the Acceptance Bank, the Issuing Bank or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Agent, the Acceptance Bank, the Issuing Bank or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersObligors, or otherwise, the provisions of this §4.11 ss.5.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 2 contracts
Samples: Credit Agreement (Baker J Inc), Credit Agreement (Baker J Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under for all of the other Loan Documents Obligations in consideration of the financial accommodations to be provided by the Administrative Agent, the L/C Issuer and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsObligations of the Borrowers.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this §4.11Section), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 10.12 constitute full recourse Obligations obligations of each of the Borrowers such Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, to the fullest extent permitted by Applicable Law, irrespective of the validity, regularity or enforceability of this Credit Agreement against any other Borrower or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the L/C Issuer or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable lawApplicable Law and except as to notices expressly provided for in the Loan Documents, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by Applicable Law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lenders, the Administrative Agent or the L/C Issuer at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Lenders, the Administrative Agent or the L/C Issuer in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, to the fullest extent permitted by law, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Lenders, the Administrative Agent or the L/C Issuer with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws Applicable Laws or regulations thereunder, which might, but for the provisions of this §4.11Section, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuer. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuer.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the Applicable Laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders, the L/C Issuer or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders, the L/C Issuer or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the Applicable Laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the relevant Lenders (in accordance with each such Lender’s Applicable Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(i) The provisions of this §4.11 Section 10.12 are made for the benefit of the Administrative Agent, the L/C Issuer and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent, the L/C Issuer or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 10.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent, the L/C Issuer or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 Section 10.12 will forthwith be reinstated in effect, as though such payment had not been made.
(j) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Agreement or the other Loan Documents, including, without limitation, with respect to any Loan Notice, Letter of Credit Application and Compliance Certificates and pursuant to Section 10.02 of this Agreement.
(k) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Agreement shall be valid and enforceable against the Borrowers to the maximum extent permitted by Applicable Law. Accordingly, if any provision of this Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Credit Agreement to be in excess of those permitted under any Applicable Law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers’ obligations under this Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such Applicable Law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 2 contracts
Samples: Credit Agreement (Casella Waste Systems Inc), Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Bank under this Credit Term Loan Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 3.04), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 3.04 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Term Loan Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Term Loans made under this Credit Term Loan Agreement, notice of any action at any time taken or omitted by the Lenders Bank under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Term Loan Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Bank at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Term Loan Agreement, any and all other indulgences whatsoever by the Lenders Bank in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 3.04, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section 3.04, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section 3.04 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section 3.04 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the LendersBank. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersBank.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 2 contracts
Samples: Term Loan Agreement (Sovran Self Storage Inc), Term Loan Agreement (Sovran Acquisition LTD Partnership)
Concerning Joint and Several Liability of the Borrowers. [**] = Certain information contained in this document, marked by “[**]” has been excluded because it is both (i) not material and (ii) would likely cause competitive harm to the registrant if publicly disclosed.
(a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a primary obligor and co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 2.05), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then then, in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 2.05 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and any promissory note issued hereunder, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Loan Documents), or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all surety ship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Each Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security, guaranty or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing or guaranty supporting the Obligations, including, without limitation, the failure to protect or preserve any rights which any Administrative Agent or any Lender may have in such collateral security or guaranty or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason any other Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any other Borrower by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 2.05, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 2.05, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 2.05 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 2.05 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrowers and that each such Borrower will look to the other Borrowers and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in the Lendersother Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 Section 2.05 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Administrative Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any the other Borrower Borrowers or to exhaust any remedies available to it or them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 2.05 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfiedsatisfied and all Commitments terminated. If at any time, any payment, or any part thereof, thereof made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2.05 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been indefeasibly paid in full in cash and all Commitments terminated. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations and the termination of the all Commitments. Each Borrower hereby agrees that after the occurrence and during the continuance of any Event of Default, unless the Administrative Agent otherwise agrees, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent on account of the Obligations and shall be paid promptly after receipt to the Administrative Agent.
Appears in 2 contracts
Samples: 364 Day Revolving Credit Agreement (KKR & Co. Inc.), 364 Day Revolving Credit Agreement (KKR & Co. Inc.)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting Borrower accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the other Borrowers and in consideration of the undertakings undertaking of each the other Borrower Borrowers to accept joint and several liability for the Obligationssuch Borrower’s obligations.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the each other Borrowers, Borrower with respect to the payment of all of the Aggregate Unpaids and the performance of all of the Obligations (including, without limitation, any Obligations arising obligations of the Borrowers under this §4.11)Agreement, it being the intention of the parties hereto that all the Obligations Aggregate Unpaids and obligations hereunder shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations Aggregate Unpaids as and when due or to perform any of the Obligations its obligations in accordance with the terms thereofhereof (including any applicable grace or cure periods), then in each such event event, the other Borrowers Borrower(s) will make such payment with respect to, or perform, such Obligationobligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 13.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assetsCollateral, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives further notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any Aggregate Unpaids of the Obligationsother Borrower, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Administrative Agent or any Lender at any time or times in respect of any default by any of the Borrowers other Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Administrative Agent or any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any Aggregate Unpaids of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowersother Borrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act with respect to the other Borrower on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, hereunder which might, but for the provisions of this §4.11Section 13.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11, it being the intention Section 13.19. The obligations of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers Borrower under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section 13.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Secured Party. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Secured Party.
(f) The provisions of this §4.11 Section 13.19 are made for the benefit of the Lenders Administrative Agent and the Secured Parties and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any such Person first to marshal any of their its claims or to exercise any of their its rights against any other Borrower or to exhaust any remedies available to them it against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder Aggregate Unpaids or to elect any other remedy. The provisions of this §4.11 Section 13.19 shall remain in effect until all of the Obligations Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the ObligationsAggregate Unpaids, is rescinded or must otherwise be restored or returned by the Lenders any Secured Party upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 13.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Transaction Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 2 contracts
Samples: Revolving Credit Agreement (CLST Holdings, Inc.), Revolving Credit Agreement (CLST Holdings, Inc.)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Lenders, the Issuing Banks and the Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations obligations arising under this §4.11)Agreement, it being the intention of the parties hereto that all the Obligations obligations shall be the joint and several Obligations obligations of each of all the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event the other Borrowers Borrower will make such payment with respect to, or perform, such Obligationobligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 12.14(d) constitute full recourse Obligations obligations of each of the Borrowers such Borrower enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans and all Revolving Advances made or Letters of Credit issued under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders Lenders, the Issuing Banks or the Agent under or in respect of any of the Obligationsobligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension 150 or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligationsobligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lenders, the Issuing Banks or the Agent at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Lenders, the Issuing Banks or the Agent in respect of any of the Obligationsobligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations such obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Lenders, the failure by any of Issuing Banks or the Borrowers to comply with any of its respective Obligations, Agent including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 12.14, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 12.14, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 12.14 shall not be discharged except by performance and then only to the extent of such performance. The Obligations obligations of each of the Borrowers Borrower under this §4.11 Section 12.14 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lenders, the Issuing Banks or the Agent. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lenders, the Issuing Banks or the Agent.
(f) The provisions of this §4.11 Section 12.14 are made for the benefit of the Lenders Lenders, the Issuing Banks and the Agent and their successors and assigns, and may be enforced by them in accordance with the terms of this Agreement from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Issuing Banks or the Agent first to marshal xxxxxxxx any of their claims or to exercise any of their rights against any the other Borrower or to exhaust any remedies available to them against any the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 12.14 shall remain in effect until all of the Obligations obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligationsobligations, is rescinded or must otherwise be restored or returned by the Lenders Lenders, the Issuing Banks or the Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 12.14 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding the provisions of this Section 12.14, in no event shall the amount of the Lender Debt for which the Parent is liable hereunder at any time exceed the outstanding Parent's Revolving Loan at such time plus accrued and unpaid interest thereon.
Appears in 2 contracts
Samples: Credit Agreement (Finlay Fine Jewelry Corp), Credit Agreement (Finlay Enterprises Inc /De)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrower with respect to the payment and performance of all of the Obligations obligations of the Borrowers under the Credit Documents (including, without limitation, any Obligations arising under this §4.11the "Credit Obligations"), it being the intention of the parties ------------------ hereto that all the such Credit Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers either Borrower shall fail to make any payment with respect to any of the Credit Obligations as and when due or to perform any of the Credit Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers Borrower will make such payment with respect to, or perform, such ObligationCredit Obligations.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 3.09 constitute full recourse Obligations obligations of each both of the Borrowers, enforceable against both of the Borrowers enforceable against each such Person to the full extent of its their properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders.
(f) The provisions of this §4.11 Section 3.09 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers either Borrower as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any the other Borrower or to exhaust any remedies available to them it against any the other Borrower or to resort to any other source or means of obtaining payment of any of the Credit Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 3.09 shall remain in effect until all of the Credit Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Credit Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowerseither Borrower, or otherwise, the provisions of this §4.11 Section 3.09 will forthwith be reinstated in effect, as though such payment had not been made.
(f) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(g) The Borrowers hereby agree, as among themselves, that if a Borrower shall become an Excess Funding Borrower (as defined below), the other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of a Borrower to any Excess Funding Borrower under this Section 3.09(g) shall be subordinate and junior in right of payment to the prior payment in full of the Credit Obligations of such Borrower under the other provisions of this Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Credit Obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Credit Obligations arising under the other provisions of this Agreement (the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this Section 3.09(g), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair saleable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair saleable value of all assets and other properties of such Borrower and the other Borrower exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrower hereunder) of such Borrower and the other Borrower, all as of the Closing Date (if any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of this Section 3.09(g) such subsequent Borrower shall be deemed to have been a Borrower as of the Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the Closing Date).
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Jp Foodservice Inc), Credit Agreement (Jp Foodservice Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrower with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers a Borrower shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event event, the other Borrowers Borrower will make such payment with respect to, or perform, such Obligationobligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 11.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein and to the extent permitted by applicable Law, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Loans made Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or any failure to act on the part of the Lenders with respect to Agent or the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 11.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 11.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 11.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations obligations of each of the Borrowers Borrower under this §4.11 Section 11.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers reconstruction or similar proceeding with respect to any Borrower or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lenders.
(f) The provisions of this §4.11 Section 11.19 are made for the benefit of the Agent and the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor therefore may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any other Borrower or to exhaust any remedies available to them it against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 11.19 shall remain in effect until all of the Obligations hereunder shall have been paid in full or otherwise fully satisfiedFully Satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 11.19 will forthwith be reinstated and in effect, effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents or Swap Contracts or Treasury Management Agreements, the obligations of each Borrower hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable Debtor Relief Law.
Appears in 2 contracts
Samples: Credit Agreement (Kid Brands, Inc), Credit Agreement (Kid Brands, Inc)
Concerning Joint and Several Liability of the Borrowers. Notwithstanding anything to the contrary contained in §§ 10.3 or 10.5.2(a)(iii), but subject to the limitation in § 6.12(i):
(a) Each of The Domestic Borrower (including any Person that becomes a Domestic Borrower at any point in the Borrowers future) is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the other Borrowers and in consideration of the undertakings of each benefit to be provided to such other Borrower to accept joint and several liability for the Obligationshereunder.
(b) Each of The Domestic Borrower (including any Person that becomes a Domestic Borrower at any point in the Borrowersfuture), jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11§ 6.12), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers Domestic Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 § 6.12 constitute the full recourse Obligations of such Borrower and each of the Domestic Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Domestic Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Revolving Credit Loans made under this Credit Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Collateral Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each The Domestic Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. The Domestic Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent, the Collateral Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. The Domestic Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent, the Collateral Agent or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which the Administrative Agent, the Collateral Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of the Domestic Borrower, or otherwise operate as a release or discharge of the Domestic Borrower, all of which may be done without notice to the Domestic Borrower; provided, however, that the foregoing shall in no way be deemed to create commercially unreasonable standards as to the Collateral Agent’s or the Administrative Agent’s duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason any of the other Borrowers has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any of the other Borrowers by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on the Domestic Borrower to the same extent as if the Domestic Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Domestic Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent, the failure by any of Collateral Agent and the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11§ 6.12, afford grounds for terminating, discharging or relieving any of the BorrowersDomestic Borrower, in whole or in part, from any of its Obligations obligations under this §4.11§ 6.12, it being the intention of each of the Borrowers Domestic Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers the Domestic Borrower under this §4.11 § 6.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 § 6.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers Domestic Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any of the Borrowers Borrower or the Lenders. The Domestic Borrower acknowledges and confirms that it has itself established its own adequate means of obtaining from each of the other Borrowers on a continuing basis all information desired by the Domestic Borrower concerning the financial condition of each of the other Borrowers and that the Domestic Borrower will look to each of the other Borrowers and not to the Administrative Agent, the Collateral Agent or any Lender in order for the Domestic Borrower to keep adequately informed of changes in each of the other Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 § 6.12 are made for the benefit of the Lenders Lenders, the Administrative Agent and the Collateral Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers Domestic Borrower as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Administrative Agent, the Collateral Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 § 6.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Lender, the Lenders Administrative Agent or the Collateral Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 § 6.12 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders, the Administrative Agent or the Collateral Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders, the Administrative Agent or the Collateral Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
(i) Notwithstanding anything set forth in this Credit Agreement or any other Loan Document to the contrary, the Canadian Borrower shall not at any time be liable, directly or indirectly, for any portion of the Domestic Obligations (except to the extent that the Canadian Borrower is a primary obligor in respect of the Canadian Obligations) including, without limitation, the principal of the Domestic Loans or any interest thereon or fees, costs or expenses (including attorneys’ fees) payable with respect thereto (including any such amounts incurred by the Administrative Agent or any Lender in connection with the enforcement of the obligations of the Domestic Borrower under the Loan Documents in respect of the Domestic Obligations, or in connection with any settlement or workout in respect of the Domestic Obligations); nor shall the Canadian Borrower at any time be liable, directly or indirectly, for any indemnification obligations or consequential damages in respect of the Domestic Obligations, howsoever arising, whether pursuant to the terms hereof, by operation of law, or in equity.
Appears in 2 contracts
Samples: Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.), Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a primary obligor and co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 2.15), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then then, in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 2.15 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and any promissory note issued hereunder, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Loan Documents), or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all surety ship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which any Administrative Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason any other Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any other Borrower by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 2.15, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 2.15, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 2.15 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 2.15 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrowers and that each such Borrower will look to the other Borrowers and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in the Lendersother Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 Section 2.15 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Administrative Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any the other Borrower Borrowers or to exhaust any remedies available to it or them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 2.15 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, ; made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender or any Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2.15 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been indefeasibly paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefore.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
Appears in 2 contracts
Samples: Credit Agreement (KKR Financial Holdings LLC), Credit Agreement (KKR Financial Holdings LLC)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting Borrower accepts joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) . Each of the BorrowersBorrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.115.13), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) . If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) . The Obligations of each of the Borrowers Borrower under the provisions of this §4.11 5.13 constitute full recourse Obligations of each of the Borrowers Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) . Except as otherwise expressly provided in this Credit Agreement, each of Borrower, to the Borrowers fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other Person primarily or secondarily liable with respect to any of the Obligations and all suretyship defenses generally. Each Borrower, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.115.13, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.115.13, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 5.13 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 5.13 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers Borrowers, the Administrative Agent or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Administrative Agent or the Lenders.
. To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (fthe "Benefit Amount"), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. Each Borrower hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any such Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders (in accordance with each such Lender's Commitment Percentage and/or Term Loan Percentage, as the case may be) to be applied to repay (or be held as security for the repayment of) the Obligations. The provisions of this §4.11 5.13 are made for the benefit of the Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 5.13 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 5.13 will forthwith be reinstated in effect, as though such payment had not been made. It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Credit Agreement shall be valid and enforceable against the Borrowers to the maximum extent permitted by applicable law. Accordingly, if any provision of this Credit Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Credit Agreement to be in excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers' obligations under this Credit Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Waste Connections Inc/De), Revolving Credit and Term Loan Agreement (Waste Connections Inc/De)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Agent and the Lenders under this Credit AgreementAgreement and the Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsLiabilities.
(b) Each of the BorrowersBorrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Liabilities, it being the intention of the parties hereto that all the Obligations Liabilities shall be the joint and several Obligations Liabilities of each of the Borrowers without preferences or distinction among themdistinction. In addition to and without in any way limiting the foregoing, each Borrower jointly and severally absolutely and unconditionally guarantees to Agent and the Lenders the payment and performance of all the Liabilities and agrees to be liable for the full and indefeasible payment and performance of all the Liabilities. This guarantee is a continuing guarantee, and shall not be terminated or terminable when any of the Liabilities or Commitments are outstanding and shall apply to all Liabilities whenever arising.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations Liabilities as and when due or to perform any of the Obligations Liabilities in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such ObligationLiability.
(d) The Obligations Liabilities of each of the Borrowers Borrower under the provisions of this §4.11 Agreement constitute full recourse Obligations Liabilities of each of the such Borrowers enforceable against each such Person Borrowers to the full extent of its properties and assets, irrespective of the validity, regularity regularity, or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each Borrower other than the Lead Borrower hereby (without prejudice to its status as Borrower and for the purposes of providing for the Borrowers hereby eventuality that, contrary to the terms of this Agreement, it is held by a court or arbitrator to be a guarantor) waives notice of acceptance of its joint and several liability, notice of any Revolving Credit Loans or Tranche B Loan made under this Credit Agreement, notice of any action at any time taken or omitted by the Agent or the Lenders under or in respect of any of the ObligationsLiabilities, and, and generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. .
(f) Each Borrower other than the Lead Borrower hereby (without prejudice to its status as Borrower and for the purposes of providing for the Borrowers hereby eventuality that, contrary to the terms of this Agreement, it is held by a court or arbitrator to be a guarantor) assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsLiabilities, the acceptance of any payment of any of the ObligationsLiabilities, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or the Lenders at any time or times in respect of any default by any of the Borrowers other Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Agent or the Lenders in respect of any of the ObligationsLiabilities, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations Liabilities or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each Borrower other than the Lead Borrower (without prejudice to its status as Borrower and for the purposes of providing for the Borrowers eventuality that, contrary to the terms of this Agreement, it is held by a court or arbitrator to be a guarantor) assents to any other action or delay in acting or failure to act on the part of the Agent or the Lenders with respect to the failure by any of the other Borrowers to comply with any of its respective ObligationsLiabilities, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, might afford grounds for terminating, discharging or relieving any of the BorrowersBorrower, in whole or in part, from any of its Obligations under Liabilities. Each Borrower waives notice of acceptance, the making of loans and providing other financial accommodations to the other Borrowers and presentment, demand, protest, notice of protest, notice of nonpayment or default and all other notices to which any Borrower or a guarantor is entitled (except as explicitly provided in this §4.11, Agreement). Each Borrower hereby further waives and relinquishes any and all other defenses or rights that it being might assert as a surety or guarantor of the Liabilities.
(g) It is the intention of each of the Borrowers Borrower that, so long as any of the Obligations Liabilities hereunder remain unsatisfied, the Obligations Liabilities of such the Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations Liabilities of each of the Borrowers any Borrower under this §4.11 Agreement shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lendersother Borrower. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers, the Agent or any Lender. No invalidity, irregularity or unenforceability of all or any part of the Liabilities shall affect, impair or be a defense to the obligations of the Borrowers hereunder, nor shall any other circumstance which might otherwise constitute a defense available or legal or equitable discharge of the LendersLead Borrower or any other Borrower discharge any other Borrower in respect of the Liabilities or such Borrowers in respect of their obligations hereunder or otherwise affect, impair or be a defense to such obligations.
(fh) The provisions of this §4.11 Section are made for the benefit of the Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations Liabilities hereunder or to elect any other remedy. The provisions of this §4.11 Section shall remain in effect until all of the Obligations Liabilities shall have been paid in full or otherwise fully satisfied. If Without prejudice to the status of any Borrower as Borrower, and for the purposes of providing for the eventuality that, contrary to the terms of this Agreement, it is held by a court or arbitrator that any Borrower other than the Lead Borrower is a guarantor, each Borrower, other than the Lead Borrower, hereby agrees that, if at any time, any payment, or any part thereof, made in respect of any of the ObligationsLiabilities, is rescinded or must otherwise be restored or returned by the Agent or any Lenders upon the insolvency, bankruptcy or reorganization reorganization, of any of the Borrowers, or otherwise, the provisions of this §4.11 Section will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting Borrower accepts joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the BorrowersBorrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11s. 5.13), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers Borrower under the provisions of this §4.11 s. 5.13 constitute full recourse Obligations of each of the Borrowers Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of Borrower, to the Borrowers fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other Person primarily or secondarily liable with respect to any of the Obligations and all suretyship defenses generally. Each Borrower, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11s. 5.13, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11s. 5.13, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 s. 5.13 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 s. 5.13 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers Borrowers, the Administrative Agent or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Administrative Agent or the Lenders.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the "Benefit Amount"), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each Borrower hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any such Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders (in accordance with each such Lender's Commitment Percentage and/or Term Loan Percentage, as the case may be) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §4.11 s. 5.13 are made for the benefit of the Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 s. 5.13 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 s. 5.13 will forthwith be reinstated in effect, as though such payment had not been made.
(i) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Credit Agreement shall be valid and enforceable against the Borrowers to the maximum extent permitted by applicable law. Accordingly, if any provision of this Credit Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Credit Agreement to be in excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers' obligations under this Credit Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Waste Connections Inc/De)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting accepts joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 5.11), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 5.11 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers, to the fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other Person primarily or secondarily liable with respect to any of the Obligations and all suretyship defenses generally. Each of the Borrowers, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 5.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section 5.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section 5.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section 5.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers Borrowers, the Administrative Agent or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Administrative Agent or the Lenders.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the "BENEFIT AMOUNT"), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, PRO RATA, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; PROVIDED, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any such Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the PRO RATA accounts of the Lenders (in accordance with each such Lender's Revolving Credit Commitment Percentage and Term Loan Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §4.11 Section 5.11 are made for the benefit of the Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 5.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 Section 5.11 will forthwith be reinstated in effect, as though such payment had not been made.
(i) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Credit Agreement shall be valid and enforceable against the Borrower to the maximum extent permitted by applicable law. Accordingly, if any provision of this Credit Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Credit Agreement to be in excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrower's obligations under this Credit Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Iesi Tx Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent, the Issuing Bank and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each all of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event the each other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 ss.5.9 constitute full recourse Obligations the absolute and unconditional obligations of each of the Borrowers such Borrower enforceable against each such Person it to the full extent of its properties and assetspermitted under the terms hereof, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementfor herein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any the Loans made under this Credit Agreement, notice of the occurrence of any Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Issuing Bank or the Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Issuing Bank or the Lenders at any time or times in respect of any default by any of the Borrowers or Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent, the Issuing Bank or the Lenders in respect of any of the Obligationsobligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations such obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower or any Guarantor. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Administrative Agent, the Issuing Bank or the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations Applicable Laws thereunder, which might, but for the provisions of this §4.11ss.5.9, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations under this §4.11ss.5.9, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers Borrower under this §4.11 ss.5.9 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of Except as otherwise expressly provided for herein, the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of Borrower or the Borrowers Administrative Agent, the Issuing Bank or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent, the Issuing Bank or the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 ss.5.9 will forthwith be reinstated in effect, as though such payment had not been made.
(f) Each Borrower appoints the Borrowers' Representative as its authorized representative to make loan request, receive funds and notice and to take all other actions under this Agreement and the other Loan Documents on its behalf.
Appears in 1 contract
Samples: Revolving Credit, Tranche B Loan and Security Agreement (Mayors Jewelers Inc/De)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11ss.4.10), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.4.10 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default Default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.4.10, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11ss.4.10, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lendersss.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Revolving Credit Agreement (Cali Realty Corp /New/)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.114.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 4.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement, including without limitation, those rights set forth in Sections 26-7 through 26-9 of the North Carolina General Statutes. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.114.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.114.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 4.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 4.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersBanks.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Banks or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Banks or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Banks (in accordance with each Bank’s Loan Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §4.11 4.12 are made for the benefit of the Lenders Banks and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Lenders Banks first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 4.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 4.12 will forthwith be reinstated in effect, as though such payment had not been made.
(i) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Credit Agreement or the other Loan Documents, including, without limitation, with respect to Loan and Letter of Credit Requests and Compliance Certificates and pursuant to §20 of this Credit Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Industries Usa Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability for all Obligations hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 2.27 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any and all Loans made or other Obligations incurred under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders Agent or any Bank under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Agent or any Bank at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Agent or any Bank in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by Agent or any of the Borrowers to comply with any of its respective ObligationsBank, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 2.27, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 2.27, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 2.27 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 2.27 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Bank. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Bank.
(f) The provisions of this §4.11 Section 2.27 are made for the benefit of the Lenders Agent and each Bank and their successors and assigns, and may be enforced by it from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Agent or any Bank first to marshal any of their its claims or to exercise any of their its rights against any the other Borrower Borrowers or to exhaust any remedies available to them it against any the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 2.27 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Agent or any Bank upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2.27 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Credit Agreement (National Patent Development Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this §4.11ss.5.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.5.12 constitute full recourse Obligations obligations of each of the such Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations and all suretyship defenses generally. Each of the Borrowers, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.5.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11ss.5.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 ss.5.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 ss.5.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers Borrowers, the Administrative Agent or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Administrative Agent or the Lenders.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the "Benefit Amount"), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, PRO RATA, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; PROVIDED, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, sue xxx or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the PRO RATA accounts of the Lenders (in accordance with each such Lender's Loan Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §4.11 ss.5.12 are made for the benefit of the Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 ss.5.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 ss.5.12 will forthwith be reinstated in effect, as though such payment had not been made.
(i) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized signxx xxxh respect to any notices, demands, communications or requests under this Credit Agreement or the other Loan Documents, including, without limitation, with respect to Loan and Letter of Credit Requests and Compliance Certificates and pursuant to ss.20 of this Credit Agreement.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Nationsrent Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 13.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Revolving Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 13.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 13.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 13.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 13.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 13.19 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 13.19 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 13.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 13.19(h) shall be subordinate and subject in right of payment to the prior payment in full of the obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this Section 13.19(h), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair saleable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair saleable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrower with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers a Borrower shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event event, the other Borrowers Borrower will make such payment with respect to, or perform, such Obligationobligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 11.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Loans made Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or any failure to act on the part of the Lenders with respect to Administrative Agent or the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 11.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 11.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 11.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations obligations of each of the Borrowers Borrower under this §4.11 Section 11.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers reconstruction or similar proceeding with respect to any Borrower or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lenders.
(f) The provisions of this §4.11 Section 11.19 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor therefore may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any other Borrower or to exhaust any remedies available to them it against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 11.19 shall remain in effect until all of the Obligations hereunder shall have been paid in full or otherwise fully satisfiedsatisfied and the Commitments have been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 11.19 will forthwith be reinstated and in effect, effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents or Swap Contracts or Cash Management Agreements, the obligations of each Borrower hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable Debtor Relief Law.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Bank under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 3.6), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 3.6 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Bank under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Except as otherwise expressly provided in this Agreement, each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Bank at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Bank in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Bank with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 3.6, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section 3.6, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section 3.6 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section 3.6 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers or the LendersBank. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or Borrowers, the LendersBank.
(f) The provisions of this §4.11 Section 3.6 are made for the benefit of the Lenders Bank and their its successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Bank first to marshal xxxxxxxx any of their claims or to exercise any of their its rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 3.6 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Bank upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 3.6 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Bank with respect to any of the Obligations or any collateral security therefor until such time as all Obligations have been paid in full or such other Borrower shall be released of all Obligations by the Bank. If, notwithstanding the foregoing, any payment shall be made to any Borrower on account of such subrogation or contribution rights at any time when the Obligations shall not have been paid in full, each and every amount so paid will forthwith be paid over to the Bank to be credited and applied to the Obligations.
Appears in 1 contract
Samples: Revolving Credit Agreement (TRC Companies Inc /De/)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting Borrower accepts joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the BorrowersBorrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.114.13), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers Borrower under the provisions of this §4.11 4.13 constitute full recourse Obligations of each of the Borrowers Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of Borrower, to the Borrowers fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other Person primarily or secondarily liable with respect to any of the Obligations and all suretyship defenses generally. Each Borrower, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.114.13, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.114.13, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 4.13 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 4.13 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers Borrowers, the Administrative Agent or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Administrative Agent or the Lenders.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each Borrower hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sxx for or otherwise attempt to collect any such Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders (in accordance with each such Lender’s Commitment Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §4.11 4.13 are made for the benefit of the Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 4.13 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 4.13 will forthwith be reinstated in effect, as though such payment had not been made.
(i) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Credit Agreement shall be valid and enforceable against the Borrowers to the maximum extent permitted by applicable law. Accordingly, if any provision of this Credit Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Credit Agreement to be in excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers’ obligations under this Credit Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Lenders from the Borrowers.
(j) Each of the Borrowers waives any rights and defenses that are or may become available to such Borrower by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Civil Code.
(k) As provided below, this Credit Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. The foregoing waivers and the provisions hereinafter set forth in this Agreement which pertain to California law are included solely out of an abundance of caution, and shall not be construed to mean that any of the above referenced provisions of California law are in any way applicable to this Credit Agreement or the Obligations.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Connections Inc/De)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under for all of the other Loan Documents Obligations in consideration of the financial accommodations to be provided by the Administrative Agent, the L/C Issuer and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsObligations of the Borrowers.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this §4.11Section), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 10.12 constitute full recourse Obligations obligations of each of the Borrowers such Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, to the fullest extent permitted by Applicable Law, irrespective of the validity, regularity or enforceability of this Credit Agreement against any other Borrower or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the L/C Issuer or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable lawApplicable Law and except as to notices expressly provided for in the Loan Documents, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by Applicable Law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lenders, the Administrative Agent or the L/C Issuer at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Lenders, the Administrative Agent or the L/C Issuer in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, to the fullest extent permitted by law, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Lenders, the Administrative Agent or the L/C Issuer with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws Applicable Laws or regulations thereunder, which might, but for the provisions of this §4.11Section, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuer. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuer.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders, the L/C Issuer or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders, the L/C Issuer or either Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the relevant Lenders (in accordance with each such Lender’s Commitment) to be applied to repay (or be held as security for the repayment of) the Obligations.
(i) The provisions of this §4.11 Section 10.12 are made for the benefit of the Administrative Agent, the L/C Issuer and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent, the L/C Issuer or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 10.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent, the L/C Issuer or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 Section 10.12 will forthwith be reinstated in effect, as though such payment had not been made.
(j) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Agreement or the other Loan Documents, including, without limitation, with respect to Committed Loan Notice, Letter of Credit Application and Compliance Certificates and pursuant to Section 10.02 of this Agreement.
(k) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Agreement shall be valid and enforceable against the Borrowers to the maximum extent permitted by Applicable Law. Accordingly, if any provision of this Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Credit Agreement to be in excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers’ obligations under this Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such Applicable Law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 1 contract
Samples: Revolving Credit Agreement (Casella Waste Systems Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.114.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 4.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.114.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.114.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 4.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 4.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersBanks.
(f) The provisions of this §4.11 4.12 are made for the benefit of the Lenders Banks and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Lenders Banks first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 4.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 4.12 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Connections Inc/De)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under for all of the other Loan Documents Obligations in consideration of the financial accommodations to be provided by the Administrative Agent, the L/C Issuers and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsObligations of the Borrowers.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this §4.11Section), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 10.12 constitute full recourse Obligations obligations of each of the Borrowers such Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, to the fullest extent permitted by Applicable Law, irrespective of the validity, regularity or enforceability of this Credit Agreement against any other Borrower or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, any L/C Issuer or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable lawApplicable Law and except as to notices expressly provided for in the Loan Documents, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by Applicable Law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lenders, the Administrative Agent or the L/C Issuers at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Lenders, the Administrative Agent or the L/C Issuers in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, to the fullest extent permitted by law, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Lenders, the Administrative Agent or the L/C Issuers with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws Applicable Laws or regulations thereunder, which might, but for the provisions of this §4.11Section, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuers. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuers.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under this Agreement (the “Benefit Amount”), then such Borrower, after the Full Payment of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been Fully Paid. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior Full Payment of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the Applicable Laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be Fully Paid before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders, the L/C Issuers or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been Fully Paid. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders, any L/C Issuer or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior Full Payment of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the Applicable Laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be Fully Paid before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior Full Payment of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been Fully Paid. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before Full Payment of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the relevant Lenders (in accordance with each such Lender’s Applicable Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(i) The provisions of this §4.11 Section 10.12 are made for the benefit of the Administrative Agent, the L/C Issuers and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent, any L/C Issuer or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 10.12 shall remain in effect until all of the Obligations shall have been paid in full Fully Paid or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent, any L/C Issuer or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 Section 10.12 will forthwith be reinstated in effect, as though such payment had not been made.
(j) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Agreement or the other Loan Documents, including, without limitation, with respect to any Loan Notice, Letter of Credit Application and Compliance Certificates and pursuant to Section 10.02 of this Agreement.
(k) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Agreement shall be valid and enforceable against the Borrowers to the maximum extent permitted by Applicable Law. Accordingly, if any provision of this Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Agreement to be in excess of those permitted under any Applicable Law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers’ obligations under this Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such Applicable Law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder with respect to the Loans, the Letters of Credit and under the other Loan Documents Obligations in consideration of the financial accommodations to be provided by the Administrative Agent and Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the obligations of each of them in respect of such Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each obligations of the Borrowers without preferences or distinction among them, whether such Loans were made or Letters of Credit issued before, on or after the Closing Date.
(c) If and to the extent that any either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or shall fail to perform any of the such Obligations in accordance with the terms thereof, then in each such event the each other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 7.12 constitute full recourse Obligations the absolute and unconditional obligations of each of the Borrowers such Borrower enforceable against each such Person it to the full extent of its properties and assetspermitted under the terms hereof, irrespective of the validity, regularity or enforceability of this Credit Agreement or any of the other Loan Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any the Loans made under this Credit Agreement, notice of the issuance of any Letter of Credit, notice of the occurrence of any Default or Event of Default (except as otherwise expressly provided for herein), or of any demand for any payment under this Credit Agreement or any of the other Loan Documents, notice of any action (except as otherwise provided for herein) at any time taken or omitted by the Lenders Administrative Agent or any Lender under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind (except as otherwise provided for herein) in connection with this Credit AgreementAgreement or any of the other Loan Documents. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Administrative Agent or any Lender at any time or times in respect of any default by any of the Borrowers either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement or any of the other Loan Documents, any and all other indulgences whatsoever by the Lenders Administrative Agent or any Lender in respect of any of the Obligationsobligations hereunder or under the other Loan Documents, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations such obligations or the addition, substitution or release, in whole or in part, of any of the Borrowerseither Borrower. Without limiting the generality of the foregoing, each of Borrower assents to the Borrowers assents extent permitted by applicable law to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by Administrative Agent or any of the Borrowers to comply with any of its respective Obligations, Lender including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 7.12, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations under this §4.11hereunder, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Borrower hereunder shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower, the Administrative Agent or any of the Borrowers or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfiedLender. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of any either of the Borrowers, or otherwise, the provisions of this §4.11 Section 7.12 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each the other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 5.14), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.. 51 -45-
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 5.14 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to the other Borrower.
(e) Except discharge of such Borrower, all of which may be done without notice to such Borrower; provided, however, that the foregoing shall in no way be deemed to create commercially unreasonable standards as otherwise expressly provided in this Credit Agreement, each to the Agent's duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason either of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made has no legal existence or is under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of no legal obligation to discharge any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for if any of the Obligations or the addition, substitution or release, in whole or in part, of any have become irrecoverable from either of the BorrowersBorrowers by reason of such Borrower's insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on the other Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 5.14, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 5.14, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 5.14 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 5.14 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to either Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any either Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrower on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrower and that each such Borrower will look to the other Borrower and not to the Agent or any Lender in order for such Borrower to keep adequately informed of changes in the Lendersother Borrower's financial condition.
(f) The provisions of this §4.11 are made for against the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 5.14 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Agent upon the insolvency, bankruptcy or reorganization of any either of the Borrowers, or otherwise, the provisions of this §4.11 Section 5.14 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which either Borrower may have against the other Borrower with respect to any payments to the Lenders or the Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to either Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to the other Borrower therefor.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11ss.4.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.4.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.or
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) a. Each Borrower acknowledges that it is jointly and severally liable for all of the Obligations under the Loan Documents, and any amendment, modification, waiver, consent or other agreement which affects the Obligations shall be deemed to affect the Obligations of all Borrowers on a joint and several basis unless expressly specified otherwise. Each Borrower expressly understands, agrees and acknowledges that (i) Borrowers are all Affiliates, (ii) each Borrower desires to have the availability of one common credit facility instead of separate credit facilities, (iii) each Borrower has requested that Lender extend such a common credit facility on the terms herein provided, (iv) Lender will be lending against, and relying on a Lien upon, all of Borrowers’ assets even though the proceeds of any particular Loan made hereunder may not be advanced directly to a particular Borrower, (v) each Borrower will nonetheless benefit by the making of all such Loans by Lender and the availability of a single credit facility of a size greater than each could independently warrant, (vi) all of the representations, warranties, covenants, obligations, conditions, agreements and other terms contained in the Loan Documents to which any Borrower is a party shall be applicable to and shall be binding upon each Borrower, unless otherwise expressly provided herein, and (vii) Borrowers have each executed this Agreement as co-obligors, and that it would not be able to obtain the credit provided by Lender without the financial support provided by the other Borrowers. Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Lender under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each . With respect to any Borrower’s Obligations arising as a result of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, of Borrowers hereunder with respect to the payment and performance Loans or other extensions of all of the Obligations (including, without limitation, any Obligations arising under this §4.11), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect credit made to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make hereunder, such payment with respect toBorrower hereby waives, as long as any Obligations are not paid in full and the commitment of Lender under this Agreement has not been terminated, any right to enforce any right of subrogation or any remedy which Lender now has or may hereafter have against any other Borrower, or perform, such Obligation.
(d) The Obligations any endorser of each of the Borrowers under the provisions of this §4.11 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement all or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any part of the Obligations, and the takingany benefit of, additionand any right to participate in, substitution or release, in whole or in part, at any time or times, of any security for any or collateral given to Lender to secure payment of the Obligations or the addition, substitution or release, in whole or in part, any other liability of any Borrower to Lender. During the existence of any Event of Default, Lender may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Borrowers. Without limiting the generality of the foregoingObligations, each of the Borrowers assents to without first proceeding against any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Borrower or any other change whatsoever Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Lender shall be under no obligation to marshal any assets in the name, membership, constitution or place of formation favor of any Borrower or against or in payment of the Borrowers or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise Obligations.
b. Each Borrower hereby guarantees the prompt payment and without requirement on performance in full of all Obligations (including the part Term Loan). Such guarantee constitutes a guarantee of payment and not of collection. Each Borrower’s guarantee under this Agreement shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or enforceability, avoidance or subordination of the Lenders first to marshal any Obligations of their claims or to exercise any of their rights against any other Borrower or of any promissory note or other document evidencing all or any part of the Obligations of any other Borrower, (ii) the absence of any attempt to exhaust collect the Obligations from any remedies available other Borrower, or any other security therefor, or the absence of any other action to them against enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by Lender with respect to any provision of any instrument evidencing the Obligations of any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect or any other agreement now or hereafter executed by any other Borrower and delivered to Lender, (iv) the failure by Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of any other Borrower, (v) Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the Obligationsapplication of Section 1111(b)(2) of the Bankruptcy Code, is rescinded (vi) any borrowing or must otherwise be restored grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or returned by any portion of Lender’s claim(s) for the Lenders upon repayment of the insolvency, bankruptcy or reorganization Obligations of any other Borrower under Section 502 of the Borrowers, Bankruptcy Code or otherwise, the provisions (viii) any other circumstances which might constitute a legal or equitable discharge or defense of this §4.11 will forthwith be reinstated a guarantor or of any other Borrower (other than actual indefeasible payment in effect, as though such payment had not been madefull).
Appears in 1 contract
Samples: Loan and Security Agreement (KeyStone Solutions, Inc.)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be 103 the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, ------------- enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.19, ------------- afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.19, it ------------- being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.19 shall not be discharged except by performance and then only ------------- to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.19 shall not be diminished or rendered unenforceable by any ------------- winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 14.19 are made for the benefit of ------------- the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.19 shall remain ------------- in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.19 will forthwith be reinstated in effect, as ------------- though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 14.19(h) ---------------- shall be subordinate and subject in right of payment to the prior payment in full of the Obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this Section 14.19(h), shall ---------------- mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair salable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of 105 the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of the Closing Date (if any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of this Section 14.19(h) such subsequent Borrower shall be deemed to have been a ---------------- Borrower as of the Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the Closing Date).
Appears in 1 contract
Samples: Credit Agreement (Chiquita Brands International Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsLiabilities.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations Liabilities (including, without limitation, any Obligations Liabilities arising under this §4.11Section 2-5), it being the intention of the parties hereto that all of the Obligations Liabilities shall be the joint and several Obligations obligations of each of the Borrowers Borrowers, without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations Liabilities as and when due or to perform any of the Obligations Liabilities in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such ObligationLiability.
(d) The Obligations Liabilities of each of the Borrowers under the provisions of this §4.11 Section 2-5 constitute the full recourse Obligations Liabilities of each of the Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or L/Cs issued under this Credit Agreement, notice of the occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by any Lender or the Lenders Administrative Agent under or in respect of any of the ObligationsLiabilities, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsLiabilities, the acceptance of any payment of any of the ObligationsLiabilities, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender or the Lenders Administrative Agent at any time or times in respect of any default Event of Default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Lender or the Lenders Administrative Agent in respect of any of the ObligationsLiabilities, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations Liabilities or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of any Lender or the Lenders Administrative Agent with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLiabilities, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 2-5, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations Liabilities under this §4.11Section 2-5, it being the intention of each of the Borrowers that, so long as any of the Obligations Liabilities hereunder remain unsatisfied, the Obligations Liabilities of such Borrowers under this §4.11 Section 2-5 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, any Lender or the Lendersany Agent.
(f) The provisions of this §4.11 Section 2-5 are made for the benefit of the Lenders and the Administrative Agent and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Agent or such successor or assign first to marshal marshall any of its or their claims or to exercise any of their rights its or theix xxxxxx against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations Liabilities hereunder or to elect any other remedy. The provisions of this §4.11 Section 2-5 shall remain in effect until all of the Obligations Liabilities shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the ObligationsLiabilities, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2-5 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Agent with respect to any of the Liabilities or any collateral security therefor until such time as all of the Liabilities have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Liabilities arising hereunder or thereunder, to the prior payment in full of the Liabilities and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Liabilities shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Liabilities. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any Indebtedness of any other Xxrrower owing to such Borrower until the Liabilities shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Agent and be paid over to the Agent for the pro-rata accounts of the Lenders to be applied to repay the Liabilities.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this §4.11ss.5.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.5.12 constitute full recourse Obligations obligations of each of the such Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations and all suretyship defenses generally. Each of the Borrowers, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.5.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11ss.5.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lendersss.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Nationsrent Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11SECTION 5.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 SECTION 5.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11SECTION 5.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11SECTION 5.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 SECTION 5.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 SECTION 5.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders.
(f) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, sue xxx or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the PRO RATA accounts of the Lenders (in accordance with each Lender's Loan Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §4.11 SECTION 5.12 are made for the benefit of the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 SECTION 5.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 SECTION 5.12 will forthwith be reinstated in effect, as though such payment had not been made.
(i) Each of the Borrowers hereby appoints the Parent, the Parent hereby agrees, to act as its representative and authorized signxx xxxh respect to any notices, demands, communications or requests under this Credit Agreement or the other Loan Documents, including, without limitation, with respect to Loan and Letter of Credit Requests and Compliance Certificates and pursuant to SECTION 20 of this Credit Agreement.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Nationsrent Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder 100 shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 14.19 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.19 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 14.19(h) shall be subordinate and subject in right of payment to the prior payment in full of the obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.. -100- 108
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lenders.any Lender. -101- 109
(f) The provisions of this §4.11 Section 14.19 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.19 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 14.19(h) shall be subordinate and subject in right of payment to the prior payment in full of the Obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this Section 14.19(h), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair salable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of the Closing Date (if any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of this Section 14.19(h) such subsequent Borrower shall be deemed to have been a Borrower as of the Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the Closing Date).
Appears in 1 contract
Samples: Credit Agreement (Fresh Foods Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.116.11), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 6.11 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Agent or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which the Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower; provided, however, that the foregoing shall in no way be deemed to create commercially unreasonable standards as to the Agent’s duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason any of the other Borrowers has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any of the other Borrowers by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.116.11, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.116.11, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 6.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 6.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from each of the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of each of the other Borrowers and that each such Borrower will look to each of the other Borrowers and not to the Agent or any Lender in order for such Borrower to keep adequately informed of changes in each of the Lendersother Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 6.11 are made for the benefit of the Lenders and the Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Agent or such successor or assign first to marshal xxxxxxxx any of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 6.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 6.11 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Agent and be paid over to the Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. Notwithstanding anything to the contrary contained in §§10.3, 10.5.2(c), 10.5.3(d) or 16.8:
(a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.116.12), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 6.12 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Revolving Credit Loans made under this Credit Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which the Administrative Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower; provided, however, that the foregoing shall in no way be deemed to create commercially unreasonable standards as to the Administrative Agent’s duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason any of the other Borrowers has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any of the other Borrowers by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.116.12, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.116.12, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 6.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 6.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from each of the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of each of the other Borrowers and that each such Borrower will look to each of the other Borrowers and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in each of the Lendersother Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 6.12 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Administrative Agent or such successor or assign first to marshal xxxxxxxx any of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 6.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 6.12 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
Appears in 1 contract
Samples: Revolving Credit Agreement (McCormick & Schmick Holdings, L.L.C.)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 SECTION 14.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11SECTION 14.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11SECTION 14.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 SECTION 14.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 SECTION 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 SECTION 14.19 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 SECTION 14.19 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 SECTION 14.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this SECTION 14.19(H) shall be subordinate and subject in right of payment to the prior payment in full of the Obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this SECTION 14.19(H), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair salable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of the Closing Date (if any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of this SECTION 14.19(H) such subsequent Borrower shall be deemed to have been a Borrower as of the Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the Closing Date).
Appears in 1 contract
Samples: Credit Agreement (Chiquita Brands International Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrower with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Credit Party Obligations, it being the intention of the parties hereto that all the Credit Party Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among between them.
(c) If and to the extent that any either of the Borrowers shall fail to make any payment with respect to any of the Credit Party Obligations as and when due or to perform any of the Credit Party Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers Borrower will make such payment with respect to, or perform, such Credit Party Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 11.17 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein or required by applicable law, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of the other Borrower's request for any Loans Loan under this Credit Agreement, notice of any Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Credit Party Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Credit Party Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Credit Party Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Credit Party Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowerseither Borrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 11.17, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 11.17, it being the intention of each of the Borrowers Borrower that, so long as any of the Credit Party Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 11.17 shall not be discharged except by performance and then only to the extent of such performance. The Credit Party Obligations of each of the Borrowers Borrower under this §4.11 Section 11.17 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to either Borrower or any of the Borrowers or the LendersLender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Borrowers or the LendersLender.
(f) The provisions of this §4.11 Section 11.17 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any the other Borrower or to exhaust any remedies available to them it against any the other Borrower or to resort to any other source or means of obtaining payment of any of the Credit Party Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 11.17 shall remain in effect until all of the Credit Party Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Credit Party Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any either of the Borrowers, or otherwise, the provisions of this §4.11 Section 11.17 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if either Borrower shall become an Excess Funding Borrower (as defined below), the other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of either Borrower to any Excess Funding Borrower under this Section 11.17(h) shall be subordinate and subject in right of payment to the prior payment in full of the obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Credit Party Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), either Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by
Appears in 1 contract
Samples: Credit Agreement (Promus Hotel Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Lender under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11section 4.9), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 section 4.9 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoeverwhatsoever except as subject to section 5.1(c).
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Lender under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lender at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Lender with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11section 4.9, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11section 4.9, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 section 4.9 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 section 4.9 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the LendersLender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersLender.
(f) The provisions of this §4.11 section 4.9 are made for the benefit of the Lenders Lender and their its successors and assigns, and may be enforced in good faith by it from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lender first to marshal any of their its claims or to exercise any of their its rights against any other Borrower or to exhaust any remedies available to them it against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 section 4.9 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 section 4.9 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Lenders, any Issuing Bank and the Agents under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.115.15), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 5.15 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by any Agent, any Issuing Bank or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agents, any Issuing Bank and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Agents, any Issuing Bank and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrowers or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which any Agent, any Issuing Bank or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which any Agent, any Issuing Bank or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason any of the other Borrowers has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any of the other Borrowers by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Agents, any Issuing Bank and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws Laws or regulations thereunder, thereunder which might, but for the provisions of this §4.115.15, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.115.15, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 5.15 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 5.15 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from each of the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of each of the other Borrowers and that each such Borrower will look to each of the other Borrowers and not to any Agent, any Issuing Bank or any Lender in order for such Borrower to keep adequately informed of changes in each of the Lendersother Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 5.15 are made for the benefit of the Lenders Lenders, the Agents and each Issuing Bank and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Agents or any Issuing Bank or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 5.15 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender, any Agent or any Issuing Bank upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 5.15 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders, any Agent or any Issuing Bank with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders, the Agents or any Issuing Bank hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Agent and the Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 3.6), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 3.6 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Agent or the Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Except as otherwise expressly provided in this Agreement, each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Agent or the Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Agent or the Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Agent or the Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 3.6, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section 3.6, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section 3.6 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section 3.6 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrowers, the Agent or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Agent or the LendersBanks.
(f) The provisions of this §4.11 Section 3.6 are made for the benefit of the Lenders Agent and the Banks and their successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Agent and the Banks first to marshal xxxxxxxx any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 3.6 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Agent and the Banks upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 3.6 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Agent or any Bank with respect to any of the Obligations or any collateral security therefor until such time as all Obligations have been paid in full or such other Borrower shall be released of all Obligations by the Agent or such Bank. If, notwithstanding the foregoing, any payment shall be made to any Borrower on account of such subrogation or contribution rights at any time when the Obligations shall not have been paid in full, each and every amount so paid will forthwith be paid over to such Bank to be credited and applied to the Obligations.
Appears in 1 contract
Samples: Revolving Credit Agreement (TRC Companies Inc /De/)
Concerning Joint and Several Liability of the Borrowers. Notwithstanding anything to the contrary contained in §§10.3, 10.5.2(c), 10.5.3(d) or 16.8:
(a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.116.11), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 6.11 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Revolving Credit Loans made under this Credit Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which the Administrative Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower; provided, however, that the foregoing shall in no way be deemed to create commercially unreasonable standards as to the Administrative Agent’s duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason any of the other Borrowers has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any of the other Borrowers by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.116.11, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.116.11, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 6.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 6.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from each of the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of each of the other Borrowers and that each such Borrower will look to each of the other Borrowers and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in each of the Lendersother Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 6.11 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Administrative Agent or such successor or assign first to marshal xxxxxxxx any of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 6.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 6.11 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
Appears in 1 contract
Samples: Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each Borrower shall be jointly and severally liable for all Obligations owing under this Agreement and the other Loan Documents, regardless of which Borrower actually receives Loans hereunder or the amount of such Loans received or the manner in which the Lenders account for such Loans on their respective books and records. Each Borrower’s direct Obligations (including with respect to Loans made to it) and each Borrower’s Obligations arising as a result of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, of such Borrower hereunder (including with respect to Loans made to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11other Borrower hereunder), it being the intention of the parties hereto that shall be separate and distinct obligations, but all the such Obligations shall be the joint and several Obligations primary obligations of each of the Borrowers without preferences or distinction among themBorrower.
(c) If and to the extent that any Each Borrower’s Obligations arising as a result of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of such Borrower hereunder with respect to Loans made to or Obligations owing by the Borrowers other Borrower hereunder shall continue in full force and effect notwithstanding shall, to the fullest extent permitted by law, be unconditional irrespective of the validity or enforceability, avoidance or subordination of the Obligations of the other Borrower or of any absorptionpromissory note or other document evidencing all or any part of the Obligations of the other Borrower, merger(ii) the absence of any attempt to collect the Obligations from the other Borrower, amalgamation any Guarantor, any other guarantor, or any other change whatsoever in security therefor, or the name, membership, constitution or place of formation absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by the Borrowers Administrative Agent or the Lenders.
, or any of them, with respect to any provision of any instrument evidencing the Obligations of the other Borrower, or any part thereof, or any other agreement now or hereafter executed by the other Borrower and delivered to the Administrative Agent or the Lenders, (fiv) The provisions of this §4.11 are made the failure by the Administrative Agent or the Lenders to take any steps to perfect and maintain their security interest in, or to preserve its rights to, any security or collateral for the benefit Obligations of the Lenders and their successors and assignsother Borrower, and may be enforced against (v) the Administrative Agent’s or any or all Lender’s election, in any proceeding instituted under the Bankruptcy Code of the Borrowers as often as occasion therefor may arise and without requirement on the part United States, of the Lenders first to marshal application of Section 1111(b)(2) of the Bankruptcy Code of the United States, (vi) any borrowing or grant of their claims a security interest by the other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code of the United States, (vii) the disallowance of all or to exercise any portion of their rights against the Administrative Agent’s or any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any Lender’s claim(s) for the repayment of the Obligations hereunder of the other Borrower under Section 502 of the Bankruptcy Code of the United States, or to elect (viii) any other remedycircumstances which might constitute a legal or equitable discharge or defense of a Guarantor, any other guarantor or of the other Borrower. The provisions With respect to each Borrower’s Obligations arising as a result of this §4.11 shall remain in effect the joint and several liability of such Borrower hereunder with respect to Loans made to or Obligations owing by the other Borrower hereunder, such Borrower waives, until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any timeand this Agreement and the other Loan Documents shall have been terminated, any paymentright to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any Guarantor or any other guarantor of all or any part thereof, made in respect of any of the Obligations, is rescinded and any benefit of, and any right to participate in, any security or must otherwise be restored collateral given to the Administrative Agent or returned by any Lender to secure payment of the Obligations or any other liability of the Borrowers to the Administrative Agent or the Lenders.
(d) Without limitation of any other provision of any Loan Document, upon the occurrence and during the continuation of any Event of Default, the Lenders upon may proceed directly and at once, without notice, against any Borrower to collect and recover the insolvencyfull amount, bankruptcy or reorganization any portion of the Obligations, without first proceeding against the other Borrower, any Guarantor or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Lenders shall be under no obligation to marshal any assets in favor of any Borrower, any Guarantor or any other Person, or against or in payment of any or all of the Borrowers, Obligations.
(e) Notwithstanding any provision to the contrary contained herein or otherwisein any other of the Loan Documents, the obligations of each Borrower hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been madeany applicable Debtor Relief Law.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising obligations of all Borrowers under this §4.11)Agreement or any other Loan Document, it being the intention of the parties hereto that all the Obligations such obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among between them.
(c) If and to the extent that any of the Borrowers Borrower shall fail to make any payment with respect to any of the Obligations obligations of any Borrower under this Agreement or any other Loan Document as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligationobligations.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 10.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance Loan Document or any other circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein or required by applicable law, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans other Borrower's request for any Loan under this Agreement, notice of any Loan made under this Credit Agreement, notice of occurrence of any Event of Default or Potential Default of any demand for any payment under this Agreement or any other Loan Document, notice of any action at any time taken or omitted by any Lender or the Lenders Agent under or in respect of any of the Obligationsobligations of the Borrowers under this Agreement or any other Loan Document, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement or any other Loan Document. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any obligations of the ObligationsBorrowers, under this Agreement or any other Loan Document, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement or any other Loan Document, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligationsobligations of the Borrowers under this Agreement or any other Loan Document, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations obligations of the Borrower under this Agreement or the addition, substitution or release, release in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, Lender including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 10.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 10.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder obligations of the Borrowers under this Agreement remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 10.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations obligations of each of the Borrowers Borrower under this §4.11 Section 10.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 10.19 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any other Borrower or to exhaust any remedies available to them it against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder obligations of the Borrowers under this Agreement or the other Loan Documents or to elect any other remedy. The provisions of this §4.11 Section 10.19 shall remain in effect until all the obligations of the Obligations Borrowers under this Agreement or the other Loan Documents shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, obligations of the Borrowers under this Agreement or the other Loan Documents is rescinded or must otherwise be restored or returned by the Lenders Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 10.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, to the extent the joint obligations of any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), the other Borrowers shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below) pay to such Excess Funding Borrower an amount equal to each such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of the other Borrowers to any Excess Funding Borrower under this Section 10.19(h) shall be subordinate and subject in right of payment to the proper payment in full of the obligations of such Borrowers under the other provisions of this Agreement and the other Loan Documents, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all such obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any obligations of the Borrowers arising under the other provisions of this Agreement (hereafter, the "Joint Obligations"), any Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations, (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding borrower in excess of its Pro Rata Share of such Joint Obligations, and (iii) "Pro Rata Share", for the purposes of this Section 10.19(h), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair saleable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair saleable value of all assets and other properties of such Borrower and the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and the other Borrowers, all as of the Closing Date. [SIGNATURE PAGES TO FOLLOW]
Appears in 1 contract
Samples: Revolving Credit Facility Credit Agreement (Brady Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11ss.4.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.4.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.4.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11ss.4.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lendersss.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such ObligationObligations.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 13.1 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 13.1, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 13.1, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 13.1 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 13.1 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 13.1 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 13.1 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 13.1 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, the obligations of each Borrower hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under section 548 of the Bankruptcy Code or any comparable provisions of any applicable state law.
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 13.1(h) shall be subordinate and subject in right of payment to the prior payment in full of the Obligations of such Borrower under the other provisions of this Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and
Appears in 1 contract
Samples: Credit Agreement (Unifi Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11ss.5.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.5.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.5.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11ss.5.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 ss.5.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 ss.5.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders.
(f) The provisions Each of this §4.11 are the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made for the benefit by it to any of the Lenders and their successors and assigns, and may be enforced against or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Borrowers as often as occasion therefor Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to exhaust any remedies available increases in the Obligations arising hereunder or thereunder, to them against the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower or therefor.
(g) Each of Borrowers hereby agrees that the payment of any amounts due with respect to resort the indebtedness owing by any Borrower to any other source or means Borrower is hereby subordinated to the prior payment in full in cash of obtaining payment the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of the Obligations hereunder Default, such Borrower will not demand, sue xxx or otherwise attempt to elect collect any indebtedness of any other remedy. The provisions of this §4.11 shall remain in effect Borrower owing to such Borrower until all of the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or otherwise fully satisfied. If at receive any time, any payment, or any part thereof, made amounts in respect of any such indebtedness, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders (in accordance with each Lender's Loan Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the .
(h) The provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been madess.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Nationsrent Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.18 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this any Credit AgreementDocument, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.18, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.18, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.18 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.18 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 14.18 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.18 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.18 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code), after taking into account, among other things, such Borrower's right of contribution and indemnification from each other Credit Party under applicable law or the Contribution Agreement.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under for all of the other Loan Documents Obligations in consideration of the financial accommodations to be provided by the Administrative Agent, the L/C Issuers and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsObligations of the Borrowers.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this §4.11Section), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 10.12 constitute full recourse Obligations obligations of each of the Borrowers such Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, to the fullest extent permitted by Applicable Law, irrespective of the validity, regularity or enforceability of this Credit Agreement against any other Borrower or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, any L/C Issuer or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable lawApplicable Law and except as to notices expressly provided for in the Loan Documents, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by Applicable Law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers Borrowers, to the fullest extent permitted by Applicable Law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lenders, the Administrative Agent or the L/C Issuers at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Lenders, the Administrative Agent or the L/C Issuers in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, to the fullest extent permitted by law, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Lenders, the Administrative Agent or the L/C Issuers with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws Applicable Laws or regulations thereunder, which might, but for the provisions of this §4.11Section, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuers. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers other Borrowers, the Lenders, the Administrative Agent or the LendersL/C Issuers.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Borrower, after the Full Payment of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been Fully Paid. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior Full Payment of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the Applicable Laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be Fully Paid before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders, the L/C Issuers or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been Fully Paid. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders, any L/C Issuer or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior Full Payment of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the Applicable Laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be Fully Paid before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior Full Payment of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been Fully Paid. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before Full Payment of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the relevant Lenders (in accordance with each such Lender’s Applicable Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(i) The provisions of this §4.11 Section 10.12 are made for the benefit of the Administrative Agent, the L/C Issuers and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent, any L/C Issuer or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 10.12 shall remain in effect until all of the Obligations shall have been paid in full Fully Paid or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent, any L/C Issuer or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 Section 10.12 will forthwith be reinstated in effect, as though such payment had not been made.
(j) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Agreement or the other Loan Documents, including, without limitation, with respect to any Loan Notice, Letter of Credit Application and Compliance Certificates and pursuant to Section 10.02 of this Agreement.
(k) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Agreement shall be valid and enforceable against the Borrowers to the maximum extent permitted by Applicable Law. Accordingly, if any provision of this Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Credit Agreement to be in excess of those permitted under any Applicable Law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers’ obligations under this Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such Applicable Law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrower jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers a Borrower shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligationobligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 11.05 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Loans made Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or any failure to act on the part of the Lenders with respect to Administrative Agent or the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 11.05, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 11.05, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 11.05 shall not be discharged except by performance and then only to the extent of such performance. The Obligations obligations of each of the Borrowers Borrower under this §4.11 Section 11.05 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers reconstruction or similar proceeding with respect to any Borrower or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lenders.
(f) The provisions of this §4.11 Section 11.05 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor therefore may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any other Borrower or to exhaust any remedies available to them it against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.other
Appears in 1 contract
Samples: Credit Agreement (Albemarle Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Lender under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11ss.4.9), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.4.9 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoeverwhatsoever except as subject to ss.5.1(c).
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Lender under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lender at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Lender with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.4.9, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11ss.4.9, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lendersss.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.114.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 4.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement, including without limitation, those rights set forth in Sections 26-7 through 26-9 of the North Carolina General Statutes. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.114.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.114.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 4.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 4.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersBanks.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Banks or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Banks or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Banks (in accordance with each Bank’s Commitment Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §4.11 4.12 are made for the benefit of the Lenders Banks and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Lenders Banks first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 4.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 4.12 will forthwith be reinstated in effect, as though such payment had not been made.
(i) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Credit Agreement or the other Loan Documents, including, without limitation, with respect to Loan and Letter of Credit Requests and Compliance Certificates and pursuant to §20 of this Credit Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Industries Usa Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Lender under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 2.7), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 2.7 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and the Notes, notice of occurrence of any Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Loan Documents), or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders Lender under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Lenders Lender in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which the Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower; provided, however, that the foregoing shall in no way be deemed to create commercially unreasonable standards as to the Lender's duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason any of the other Borrowers has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any of the other Borrowers by reason of such other Borrower's insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 2.7, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 2.7, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 2.7 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 2.7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers reconstruction or the Lenderssimilar proceeding with respect to any other Borrower. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower. Each of the Borrowers or acknowledges and confirms that it has itself established its own adequate means of obtaining from each of the Lendersother Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of each of the other Borrowers and that each such Borrower will look to each of the other Borrowers and not to the Lender in order for such Borrower to keep adequately informed of changes in each of the other Borrowers' respective financial conditions.
(f) The provisions of this §4.11 Section 2.7 are made for the benefit of the Lenders Lender and their its respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lender or such successor or assign first to marshal xxxxxxxx any of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 2.7 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2.7 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Lender with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Lender and be paid over to the Lender to be applied to repay the Obligations.
Appears in 1 contract
Samples: Loan and Security Agreement (Sizzler International Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.21 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided herein or in this the other Credit AgreementDocuments, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.21, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.21, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.21 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.21 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect 100 notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 14.21 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.21 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.21 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the U.S. federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 14.21(h) shall be subordinate and subject in right of payment to the prior payment in full of the Obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this Section 14.21(h), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair salable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, 101 unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of the Closing Date (if any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of this Section 14.21(h) such subsequent Borrower shall be deemed to have been a Borrower as of the Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the Closing Date).
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability for all of the Obligations hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Agents, the Issuing Lender and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsObligations of the Borrowers.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this §4.115.9), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 5.9 constitute full recourse Obligations obligations of each of the Borrowers such Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, to the fullest extent permitted by applicable law, irrespective of the validity, regularity or enforceability of this Credit Agreement against any other Borrower or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Agents, the Issuing Lender or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lenders, the Agents or the Issuing Lender at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Lenders, the Agents or the Issuing Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, to the fullest extent permitted by law, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Lenders, the Agents or the Issuing Lender with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.115.9, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.115.9, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 5.9 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 5.9 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers Borrowers, the Agents, the Issuing Lender or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Agents, the Issuing Lender or the Lenders.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders, the Issuing Lender or either Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders, the Issuing Lender or either Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of Borrowers hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the relevant Lenders (in accordance with each such Lender’s Loan Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(i) The provisions of this §4.11 5.9 are made for the benefit of the Agents, the Issuing Lender and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Agents, the Issuing Lender or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 5.9 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Agents, the Issuing Lender or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 5.9 will forthwith be reinstated in effect, as though such payment had not been made.
(j) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Credit Agreement or the other Loan Documents, including, without limitation, with respect to Loan and Letter of Credit Requests and Compliance Certificates and pursuant to §21 of this Credit Agreement.
(k) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Credit Agreement shall be valid and enforceable against the Borrower to the maximum extent permitted by applicable law. Accordingly, if any provision of this Credit Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Credit Agreement to be in excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrower’s obligations under this Credit Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Loan Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.115.15), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 5.15 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Loan Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Loan Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Loan Agreement or any of the other Loan Documents), or of any demand for any payment under this Loan Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementLoan Agreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementLoan Agreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrowers or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which the Administrative Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason any of the other Borrowers has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any of the other Borrowers by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Loan Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws Laws or regulations thereunder, thereunder which might, but for the provisions of this §4.115.15, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.115.15, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 5.15 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 5.15 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrower on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrower and that each such Borrower will look to the other Borrower and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in the Lendersother Borrower’s financial conditions.
(f) The provisions of this §4.11 5.15 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Administrative Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any the other Borrower or to exhaust any remedies available to it or them against any the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 5.15 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 5.15 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against the other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to the other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by either Borrower to the other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of the other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11SECTION 2.17), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 SECTION 2.17 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and any promissory note issued hereunder, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which any Administrative Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason the other Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from the other Borrower by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11SECTION 2.17, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11SECTION 2.17, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 SECTION 2.17 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 SECTION 2.17 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrower on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrower and that each such Borrower will look to the other Borrower and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in the Lendersother Borrower’s respective financial conditions.
(f) The provisions of this §4.11 SECTION 2.17 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any either or all both of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Administrative Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any the other Borrower or to exhaust any remedies available to it or them against any the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 SECTION 2.17 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender or any Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 SECTION 2.17 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been indefeasibly paid in full in cash. Any claim which any Borrower may have against the other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to the other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of the other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Domestic Borrowers is accepting joint and several liability for all of the Obligations (including the Canadian Obligations) hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Bank Agents and the Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Domestic Borrower to accept joint and several liability for the Obligations of both the Domestic Borrowers and the Canadian Borrowers. Each of the Canadian Borrowers, to the fullest extent permitted by applicable law, is accepting joint and several liability for the Canadian Obligations hereunder and under the other Loan Documents in consideration of the financial accommodation to be provided by the Bank Agents and the Banks under this Agreement, for the mutual benefit, directly or indirectly, of each of the Canadian Borrowers and in consideration of the undertakings of each other Canadian Borrower to accept (to the fullest extent permitted by law) the joint and several liability for the Canadian Obligations.
(b) Each of the Domestic Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Domestic Borrowers with respect to the payment and performance of all of the Obligations of both the Domestic Borrowers and the Canadian Borrowers (including, without limitation, any Obligations arising under this Section 5.10), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Domestic Borrowers without preferences or distinction among them.
(c) To the fullest extent permitted by applicable law, each of the Canadian Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as surety but also as co-debtor, joint and several liability with all of the other Canadian Borrowers, with respect to the payment and performance of all of the Canadian Obligations (including, including without limitation, limitation any Canadian Obligations arising under this §4.11Section 5.10), it being the intention of the parties hereto that all of the Canadian Obligations shall be the joint and several Obligations obligations of each of the Canadian Borrowers without preferences preference or distinction among them.
(cd) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Domestic Borrowers will make such payment with respect to, or perform, such Obligation. If and to the extent that any of the Canadian Borrowers shall fail to make any payment with respect to any of the Canadian Obligations as and when due or to perform any of such Canadian Obligations in accordance with the terms thereof, then in each such event the other Canadian Borrowers, to the fullest extent permitted by applicable law, will make such payment with respect to, or perform, such Canadian Obligation.
(de) The applicable Obligations of each of the Borrowers under the provisions of this §4.11 Section 5.10 constitute full recourse Obligations obligations of each of the such Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(ef) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Bank Agents or the Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers Borrowers, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations or Canadian Obligations, as applicable, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 5.10, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations or Canadian Obligations, as applicable, under this §4.11Section 5.10, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section 5.10 shall not be discharged except by performance and then only to the extent of such performance. The Obligations or Canadian Obligations, as applicable, of each of the Borrowers under this §4.11 Section 5.10 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers Borrowers, the Bank Agents or the LendersBanks. The joint and several liability of the Borrowers hereunder (to the fullest extent permitted by law in the case of the Canadian Borrowers) shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Bank Agents or the LendersBanks.
(fg) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Banks or the Bank Agents with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Banks or the Bank Agents hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the relevant Bank Agent and be paid over to the relevant Bank Agent for the PRO RATA accounts of the relevant Bank (in accordance with each such Bank's Loan Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(i) The provisions of this §4.11 Section 5.10 are made for the benefit of the Lenders Bank Agents and the Banks and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Lenders Bank Agents or the Banks first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 5.10 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Bank Agents or the Banks upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 Section 5.10 will forthwith be reinstated in effect, as though such payment had not been made.
(j) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Agreement or the other Loan Documents, including, without limitation, with respect to Loan and Letter of Credit Requests, Canadian Loan and Letter of Credit Requests and Compliance Certificate and pursuant to Section 21 of this Agreement.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations. [**] = Certain information contained in this document, marked by “[**]” has been excluded because it is both (i) not material and (ii) would likely cause competitive harm to the registrant if publicly disclosed.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a primary obligor and co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 2.05), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then then, in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 2.05 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and any promissory note issued hereunder, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Loan Documents), or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all surety ship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Each Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security, guaranty or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing or guaranty supporting the Obligations, including, without limitation, the failure to protect or preserve any rights which any Administrative Agent or any Lender may have in such collateral security or guaranty or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason any other Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any other Borrower by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 2.05, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 2.05, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 2.05 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 2.05 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrowers and that each such Borrower will look to the other Borrowers and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in the Lendersother Borrowers’ respective financial conditions.
(f) The provisions of this §4.11 Section 2.05 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Administrative Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any the other Borrower Borrowers or to exhaust any remedies available to it or them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 2.05 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfiedsatisfied and all Commitments terminated. If at any time, any payment, or any part thereof, thereof made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2.05 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been indefeasibly paid in full in cash and all Commitments terminated. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations and the termination of the all Commitments. Each Borrower hereby agrees that after the occurrence and during the continuance of any Event of Default, unless the Administrative Agent otherwise agrees, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent on account of the Obligations and shall be paid promptly after receipt to the Administrative Agent.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11ss.5.10), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.5.10 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.5.10, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11ss.5.10, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 ss.5.10 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 ss.5.10 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersBanks.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been madess.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting Borrower accepts joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the BorrowersBorrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.115.13), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers Borrower under the provisions of this §4.11 5.13 constitute full recourse Obligations of each of the Borrowers Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of Borrower, to the Borrowers fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower, to the fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other Person primarily or secondarily liable with respect to any of the Obligations and all suretyship defenses generally. Each Borrower, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.115.13, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.115.13, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 5.13 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 5.13 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers Borrowers, the Administrative Agent or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Administrative Agent or the Lenders.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each Borrower hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any such Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders (in accordance with each such Lender’s Commitment Percentage and/or Term Loan Percentage, as the case may be) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §4.11 5.13 are made for the benefit of the Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 5.13 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 5.13 will forthwith be reinstated in effect, as though such payment had not been made.
(i) It is the intention and agreement of the Borrowers and the Lenders that the obligations of the Borrowers under this Credit Agreement shall be valid and enforceable against the Borrowers to the maximum extent permitted by applicable law. Accordingly, if any provision of this Credit Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Borrowers and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Lenders created by other provisions of this Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled to collect from the Borrowers under this Credit Agreement to be in excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers’ obligations under this Credit Agreement, it is the stated intention and agreement of the Borrowers and the Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Lenders from the Borrowers.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Bank under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11(S)3.8), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 (S)3.8 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to the other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Revolving Credit Loans made under this Agreement and the Revolving Credit Note, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Loan Documents), or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders Bank under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Bank at any time or times in respect of any default by any of the Borrowers either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Lenders Bank in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of either Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Bank may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which the Agent or any Bank may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower; provided, however, that the foregoing shall in no way be deemed -------- ------- to create commercially unreasonable standards as to the Bank's duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason the other Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from the other Borrower by reason of such other Borrower's insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsBank, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11(S)3.8, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11(S)3.8, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 (S)3.8 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 (S)3.8 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to either reconstruction or similar proceeding with respect to any of the Borrowers Borrower, or the LendersBank. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any either Borrower or the Bank. Each of the Borrowers or acknowledges and confirms that it has itself established its own adequate means of obtaining from the Lendersother Borrower on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrower and that each such Borrower will look to the other Borrower and not to the Bank in order for such Borrower to keep adequately informed of changes in each of the other Borrower's financial conditions.
(f) The provisions of this §4.11 (S)3.8 are made for the benefit of the Lenders Bank and their its respective successors and assigns, and may be enforced by it or them from time to time against any either or all both of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Bank or such successor or assign first to marshal xxxxxxxx any of its or their claims or to exercise any of its or their rights against any the other Borrower or to exhaust any remedies available to it or them against any the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 (S)3.8 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Bank upon the insolvency, bankruptcy or reorganization of any either of the Borrowers, or otherwise, the provisions of this §4.11 (S)3.8 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Bank with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which either Borrower may have against the other Borrower with respect to any payments to the Bank hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to either Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to the other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by either Borrower to the other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of the other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Bank and be paid over to the Bank to be applied to repay the Obligations.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the U.S. Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with all of the other Borrowers, with respect to the payment and performance of all of the Obligations of both the U.S. Borrowers and the International Borrowers (including, without limitation, any such Obligations arising under this §4.11(S)7.14), it being the intention of the parties hereto that all of the Obligations of both the U.S. Borrowers and the International Borrowers shall be the joint and several Obligations of each of the U.S. Borrowers without preferences or distinction among them.
(b) To the fullest extent permitted by applicable law, each of the International Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as surety but also as co-debtor, joint and several liability with all of the other International Borrowers, with respect to the payment and performance of all of the Obligations of the International Borrowers (including without limitation any such Obligations arising under this (S)7.14), it being the intention of the parties hereto that all of the Obligations of the International Borrowers shall be the joint and several Obligations of each of the International Borrowers without preference or distinction among them.
(c) Each of the U.S. Borrowers is accepting joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Agents and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other U.S. Borrower to accept joint and several liability for the Obligations of both the U.S. Borrowers and the International Borrowers. Each of the International Borrowers, to the fullest extent permitted by applicable law, is accepting joint and several liability for the Obligations of the International Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodation to be provided by the Agents and the Lenders under this Agreement, for the mutual benefit, directly or indirectly, of each of the International Borrowers and in consideration of the undertakings of each other International Borrower to accept the joint and several liability for the Obligations of the International Borrowers.
(d) If and to the extent that any of the U.S. Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event the other U.S. Borrowers will make such payment with respect to, or perform, such Obligation. If and to the extent that any of the International Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or perform any of such Obligations in accordance with the terms thereof, then in each such event the other International Borrowers and the U.S. Borrowers, to the fullest extent permitted by applicable law, will make such payment with respect to, or perform, such Obligations.
(de) The Obligations of each of the U.S. Borrowers under the provisions of this §4.11 (S)7.14 constitute full recourse Obligations of each of the such Borrowers enforceable to the fullest extent permitted by applicable law against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever. The Obligations of each of the International Borrowers under the provisions of this (S)7.14 constitute full recourse Obligations of each of such Borrowers enforceable against each such Borrower to the fullest extent permitted by applicable law to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstance whatsoever.
(ef) Except as otherwise for such notices to the Borrowers expressly provided in required by this Credit Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Agents or the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Except as otherwise expressly provided in this Agreement, each of the Borrowers Borrowers, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, or any defense in respect -45- of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agents or the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Agents or the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Agents or the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure by any of the Agents or the Lenders strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11(S)7.14, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11(S)7.14, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers Borrower under this §4.11 (S)7.14 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 (S)7.14 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrowers, the Agents or the Lenders. The joint and several liability of the Borrowers hereunder set forth in this (S)7.14 shall continue in full force and effect notwithstanding any absorption, merger, amalgamation amalgamation, consolidation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Agents or the Lenders.
(fg) The provisions of this §4.11 (S)7.14 are made for the benefit of the Agents and the Lenders and their successors and assigns, and may be enforced enforced, to the fullest extent permitted by applicable law, in good faith by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations obligations hereunder or to elect any other remedy. The provisions of this §4.11 (S)7.14 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfiedsatisfied and the obligations of the Lenders to make Loans and of the Managing Agent to issue, extend, or renew Letters of Credit hereunder shall have terminated. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Agents or the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 (S)7.14 will forthwith be reinstated in effect, as though such payment had not been made.
(h) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under this Agreement, then such Borrower, after the final and irrevocable payment in full in cash of all the Obligations of the U.S. Borrowers and the International Borrowers hereunder and the termination of all Commitments and Letters of Credit hereunder, shall be entitled to recover from other Borrowers such excess payment pro rata and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (United States Filter Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each all of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event the each other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 ss.5.11 constitute full recourse Obligations the absolute and unconditional obligations of each of the Borrowers such Borrower enforceable against each such Person it to the full extent of its properties and assetspermitted under the terms hereof, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any the Loans made under this Credit Agreement, notice of the occurrence of any Default or Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by any of the Borrowers either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the Obligationsobligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations such obligations or the addition, substitution or release, in whole or in part, of any of the Borrowerseither Borrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Administrative Agent or the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.5.11, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations under this §4.11ss.5.11, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers Borrower under this §4.11 ss.5.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of either Borrower or the Borrowers Administrative Agent or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 ss.5.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Credit Agreement (Starter Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11ss.4.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.4.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.the
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11ss.6.11), it being the intention of the parties hereto that all the Obligations shall be the thE joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.6.11 constitute full the fulL recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to Borrower or any other action entity or delay in acting Person primarily or failure to act on the part of the Lenders with respect to the failure by secondarily liable for any of the Borrowers to comply with any of Obligation. Such Borrower further agrees that its respective Obligations, including, without limitation, any failure strictly Obligations shall not be released or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowersdischarged, in whole or in part, from or otherwise affected by the adequacy of any of its Obligations under this §4.11, it being rights which the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and Lender may be enforced have against any collateral security or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.repayment
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Furrs Restaurant Group Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 14.19 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.19 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 14.19(h) shall be subordinate and subject in right of payment to the prior payment in full of the obligations of such Borrower under the other provisions of this Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this Section 14.19(h), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair saleable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair saleable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of the Closing Date (if any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of this Section 14.19(h) such subsequent Borrower shall be deemed to have been a Borrower as of the Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the Closing Date).
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrower with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Agreement and the other Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers a Borrower shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event event, the other Borrowers Borrower will make such payment with respect to, or perform, such Obligationobligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 11.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of occurrence of any Loans made Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or any failure to act on the part of the Lenders with respect to Agent or the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 11.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 11.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 11.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations obligations of each of the Borrowers Borrower under this §4.11 Section 11.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers reconstruction or similar proceeding with respect to any Borrower or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lenders.
(f) The provisions of this §4.11 Section 11.19 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor therefore may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any other Borrower or to exhaust any remedies available to them it against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 11.19 shall remain in effect until all of the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 11.19 will forthwith be reinstated and in effect, effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents or Swap Contracts or Treasury Management Agreements, the obligations of each Borrower hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable Debtor Relief Law.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each all of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event the each other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 ss.5.11 constitute full recourse Obligations the absolute and unconditional obligations of each of the Borrowers such Borrower enforceable against each such Person it to the full extent of its properties and assetspermitted under the terms hereof, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers Each Borrower hereby waives notice of acceptance of its joint and several liability, notice of any the Loans made under this Credit Agreement, notice of the occurrence of any Default or Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by any of the Borrowers either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the Obligationsobligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations such obligations or the addition, substitution or release, in whole or in part, of any of the Borrowerseither Borrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Administrative Agent or the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11ss.5.11, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations under this §4.11ss.5.11, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers Borrower under this §4.11 ss.5.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of either Borrower or the Borrowers Administrative Agent or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 ss.5.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Credit Agreement (Starter Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Lender under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the BorrowersBorrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 12.13), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the any other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 12.13 constitute the full recourse Obligations of each of the Borrowers Borrower enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any Loans made and all Advances under the Revolving Facility, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Lender or under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Lenders Lender in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower; provided, however, that the foregoing shall in no way be deemed to create commercially unreasonable standards as to Lender’s duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason any Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any Borrower by reason of any other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower (if more than one) assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 12.13, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 12.13, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 12.13 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 12.13 shall not be diminished or rendered unenforceable by any winding up, reorganization, amalgamation, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers reconstruction or the Lenderssimilar proceeding with respect to any other Borrower or Lender. The joint and several liability of the Borrowers each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or Lender. Each Borrower acknowledges and confirms that it has established its own adequate means of obtaining from each other Borrower on a continuing basis all information desired by such Borrower concerning the financial condition of each other Borrower and that each such Borrower will look to each other Borrower and not to Lender for such Borrower to keep adequately informed of changes in each of the Borrowers or the Lendersother Borrower’s respective financial conditions.
(f) Each Borrower acknowledges that all or any portion of the Obligations may now or hereafter be secured by a Lien or Liens upon real property evidenced by certain documents including deeds of trust and assignments of rents. Lender may, pursuant to the terms of said real property security documents and applicable law, foreclose under all or any portion of one or more of said Liens by means of judicial or nonjudicial sale or sales. Each Borrower agrees that Lender may exercise whatever rights and remedies it may have with respect to said real property security, all without affecting the liability of such Borrower hereunder, except to the extent Lender realizes payment by such action or proceeding. No election to proceed in one form of action or against any party, or on any obligation shall constitute a waiver of Lender’s right to proceed in any other form of action or against such Borrower or any other Borrower or other Person, or diminish the liability of such Borrower, or affect the right of Lender to proceed against such Borrower for any deficiency, except to the extent Lender realizes payment by such action, notwithstanding the effect of such action upon such Borrower’s rights of subrogation, reimbursement or indemnity, if any, against any other Borrower or any other Person.
(g) The provisions of this §4.11 Section 12.13 are made for the benefit of the Lenders Lender and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor therefore may arise and without requirement on the part of the Lenders Lender or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 12.13 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 12.13 will forthwith be reinstated in effect, as though such payment had not been made.
(h) Each Borrower hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to Lender with respect to any of the Obligations or any collateral security therefore until such time as all of the Obligations have been Paid in Full. Any claim which any Borrower may have against any other Borrower with respect to any payments to Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(i) Each Borrower hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for Lender and be paid over to Lender to be applied to repay the Obligations.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (NationsHealth, Inc.)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsLiabilities.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations Liabilities (including, without limitation, any Obligations Liabilities arising under this §4.11Section 2-5), it being the intention of the parties hereto that all of the Obligations Liabilities shall be the joint and several Obligations obligations of each of the Borrowers Borrowers, without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations Liabilities as and when due or to perform any of the Obligations Liabilities in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such ObligationLiability.
(d) The Obligations Liabilities of each of the Borrowers under the provisions of this §4.11 Section 2-5 constitute the full recourse Obligations Liabilities of each of the Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or L/Cs issued under this Credit Agreement, notice of the occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by any Lender or the Lenders Administrative Agent under or in respect of any of the ObligationsLiabilities, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsLiabilities, the acceptance of any payment of any of the ObligationsLiabilities, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender or the Lenders Administrative Agent at any time or times in respect of any default Event of Default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Lender or the Lenders Administrative Agent in respect of any of the ObligationsLiabilities, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations Liabilities or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of any Lender or the Lenders Administrative Agent with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLiabilities, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 2-5, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations Liabilities under this §4.11Section 2-5, it being the intention of each of the Borrowers that, so long as any of the Obligations Liabilities hereunder remain unsatisfied, the Obligations Liabilities of such Borrowers under this §4.11 Section 2-5 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, any Lender or the Lendersany Agent.
(f) The provisions of this §4.11 Section 2-5 are made for the benefit of the Lenders and the Administrative Agent and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Agent or such successor or assign first to marshal xxxxxxxx any of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations Liabilities hereunder or to elect any other remedy. The provisions of this §4.11 Section 2-5 shall remain in effect until all of the Obligations Liabilities shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the ObligationsLiabilities, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2-5 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Agent with respect to any of the Liabilities or any collateral security therefor until such time as all of the Liabilities have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Liabilities arising hereunder or thereunder, to the prior payment in full of the Liabilities and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Liabilities shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Liabilities. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Liabilities shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Agent and be paid over to the Agent for the pro-rata accounts of the Lenders to be applied to repay the Liabilities.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Agent and the Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower Borrowers to accept joint and several liability for the Obligations.
(b) Each of the The Borrowers, jointly and severally, hereby irrevocably and unconditionally acceptsaccept, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11ss.6.13), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 ss.6.13 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to the other Borrowers.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Agent or any Bank under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Agent or any Bank at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.of
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Morgan Group Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 5.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences preference or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 5.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 5.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11Section 5.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 Section 5.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section 5.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersBanks.
(f) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Banks or the Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Banks or the Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced, received by such Borrower as trustee for the Agent and be paid over to the Agent for the PRO RATA accounts of the Banks to be applied to repay the Obligations.
(h) The provisions of this §4.11 Section 5.12 are made for the benefit of the Lenders Banks and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Lenders Banks first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 5.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 5.12 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Revolving Credit Agreement (American Restaurant Group Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.115.10), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 5.10 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person corporation to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.115.10, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.115.10, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 5.10 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 5.10 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersBanks.
(f) The provisions of this §4.11 5.10 are made for the benefit of the Lenders Banks and their successors and assigns, and may be enforced in good faith against them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Banks first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 5.10 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 5.10 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Revolving Credit Agreement (Casella Waste Systems Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each The obligations of the Borrowers is accepting Company and the Guarantors hereunder shall be joint and several liability in nature for all Obligations owing hereunder and or under the other Loan Documents in consideration (whether borrowed by the Company or the UK Borrower), provided that (i) the obligations of the financial accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept Company as a joint and several liability for obligor hereunder in respect of the Obligations of the UK Borrower shall not in any event exceed an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable Law, (ii) the Company shall not exercise any right of subrogation, indemnity, reimbursement or contribution against any Loan Party until such time as the Obligations have been irrevocably paid in full and the commitments relating thereto have expired or been terminated, and (iii) the Company expressly waives any requirement that the Administrative Agent or any holder of the Obligations, or any of their officers, agents or representatives, exhaust any right, power or remedy or first proceed under any of the Loan Documents or against any other Loan Party, any other Person or any Collateral with respect to the Obligations.
(b) Each Notwithstanding anything to the contrary contained herein or in any other Loan Document, (i) the obligations of the BorrowersUK Borrower hereunder shall be several (and not joint) in nature and shall be limited to the Obligations of the UK Borrower arising from Credit Extensions made to the UK Borrower (which shall include the Obligations under the UK Sublimit as well as the UK Overdraft Facilities) and (ii) the Collateral pledged by the UK Borrower shall only secure the Obligations described in clause (i) above, jointly and severallyprovided that the UK Borrower expressly waives any requirement that the Administrative Agent or any holder of the Obligations of the UK Borrower, hereby irrevocably and unconditionally acceptsor any of their officers, not merely as a surety but also as a co-debtoragents or representatives, joint and several liability with exhaust any right, power or remedy or first proceed under any of the Loan Documents or against any other BorrowersLoan Party, any other Person or any Collateral with respect to the payment and performance of all Obligations of the Obligations (including, without limitation, any Obligations arising under this §4.11), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among themUK Borrower.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Credit Agreement (International Assets Holding Corp)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Agent and the Lenders under this Credit AgreementAgreement and the Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsLiabilities.
(b) Each of the BorrowersBorrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Liabilities, it being the intention of the parties hereto that all the Obligations Liabilities shall be the joint and several Obligations Liabilities of each of the Borrowers without preferences or distinction among themdistinction.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations Liabilities as and when due or to perform any of the Obligations Liabilities in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such ObligationLiability.
(d) The Obligations Liabilities of each of the Borrowers Borrower under the provisions of this §4.11 Agreement constitute full recourse Obligations Liabilities of each of the such Borrowers enforceable against each such Person Borrowers to the full extent of its properties and assets, irrespective of the validity, regularity regularity, or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each Borrower other than the Lead Borrower hereby (without prejudice to its status as Borrower and for the purposes of providing for the Borrowers hereby eventuality that, contrary to the terms of this Agreement, it is held by a court or arbitrator to be a guarantor) waives notice of acceptance of its joint and several liability, notice of any Revolving Credit Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Agent or the Lenders under or in respect of any of the ObligationsLiabilities, and, and generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. .
(f) Each Borrower other than the Lead Borrower hereby (without prejudice to its status as Borrower and for the purposes of providing for the Borrowers hereby eventuality that, contrary to the terms of this Agreement, it is held by a court or arbitrator to be a guarantor) assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsLiabilities, the acceptance of any payment of any of the ObligationsLiabilities, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or the Lenders at any time or times in respect of any default by any of the Borrowers other Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Agent or the Lenders in respect of any of the ObligationsLiabilities, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being and
(g) It is the intention of each of the Borrowers Borrower that, so long as any of the Obligations Liabilities hereunder remain unsatisfied, the Obligations Liabilities of such the Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations Liabilities of each of the Borrowers any Borrower under this §4.11 Agreement shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lendersother Borrower. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, the Agent or the Lendersany Lender.
(fh) The provisions of this §4.11 Section are made for the benefit of the Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations Liabilities hereunder or to elect any other remedy. The provisions of this §4.11 Section shall remain in effect until all of the Obligations Liabilities shall have been paid in full or otherwise fully satisfied. If Without prejudice to the status of any Borrower as Borrower, and for the purposes of providing for the eventuality that, contrary to the terms of this Agreement, it is held by a court or arbitrator that any Borrower other than the Lead Borrower is a guarantor, each Borrower, other the Lead Borrower, hereby agrees that, if at any time, any payment, or any part thereof, made in respect of any of the ObligationsLiabilities, is rescinded or must otherwise be restored or returned by the Agent or any Lenders upon the insolvency, bankruptcy or reorganization reorganization, of any of the Borrowers, or otherwise, the provisions of this §4.11 Section will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each Borrower shall be jointly and severally liable for all amounts due to the Lenders under this Agreement and the other Loan Documents, regardless of which Borrower actually receives Loans or other Credit Extensions hereunder or the amount of such Loans or other Credit Extensions received or the manner in which the Lenders account for such Loans or other Credit Extensions on its books and records. Each Borrower’s Obligations with respect to Loans or other Credit Extensions made to it, and each Borrower’s Obligations arising as a result of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowersof such Borrower hereunder, with respect to Loans or other Credit Extensions made to the payment other Borrower hereunder, shall be separate and performance of distinct obligations, but all of the Obligations (including, without limitation, any Obligations arising under this §4.11), it being the intention of the parties hereto that all the such Obligations shall be the joint and several Obligations primary obligations of each of the Borrowers without preferences or distinction among themBorrower.
(c) If Each Borrower’s Obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans or other Credit Extensions made to the other Borrower hereunder shall, to the fullest extent that any permitted by law, be unconditional irrespective of (i) the validity or enforceability, avoidance or subordination of the Borrowers shall fail Obligations of the other Borrower or of any promissory note or other document evidencing all or any part of the Obligations of the other Borrower, (ii) the absence of any attempt to make collect the Obligations from the other Borrower, any payment other guarantor, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or the Lenders with respect to any provision of any instrument evidencing the Obligations of the other Borrower, or any part thereof, or any other agreement now or hereafter executed by the other Borrower and delivered to the Administrative Agent or the Lenders, (iv) the failure by the Administrative Agent or the Lenders to take any steps to perfect and maintain their security interest in, or to preserve its rights to, any security or collateral for the Obligations of the other Borrower, (v) the Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code of the United States, of the application of Section 1111(b)(2) of the Bankruptcy Code of the United States, (vi) any borrowing or grant of a security interest by the other Borrower, as Debtor In Possession under Section 364 of the Bankruptcy Code of the United States, (vii) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the Obligations as and when due or to perform any of the Obligations in accordance with other Borrower under Section 502 of the terms thereofBankruptcy Code of the United States, then in each such event or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of the other Borrowers will make such payment with Borrower. With respect to, or perform, such Obligation.
(d) The to each Borrower’s Obligations of each arising as a result of the Borrowers under the provisions of this §4.11 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice liability of any such Borrower hereunder with respect to Loans or other Credit Extensions made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted other Borrower hereunder, such Borrower waives, until the Obligations (other than inchoate indemnity obligations and any other obligations which, by applicable lawtheir terms, all demands, notices are to survive the termination of this Agreement) shall have been paid in full and this Agreement and the other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice ofLoan Documents shall have been terminated, any extension right to enforce any right of subrogation or postponement of any remedy which the time for the payment of Administrative Agent or any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereonLender now has or may hereafter have against such Borrower, any waiver, consent endorser or other action any guarantor of all or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any part of the Obligations, and the takingany benefit of, additionand any right to participate in, substitution or release, in whole or in part, at any time or times, of any security for or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any liability of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Administrative Agent or the Lenders.
(fd) The provisions Upon the occurrence and during the continuation of this §4.11 are made any Event of Default, the Lenders may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against the other Borrower or any other Person, or against any security or collateral for the benefit of Obligations. Each Borrower consents and agrees that the Lenders and their successors and assigns, and may shall be enforced under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Borrowers as often as occasion therefor may arise and without requirement on Obligations.
(e) Notwithstanding any provision to the part contrary contained herein or in any other of the Lenders first Loan Documents or Swap Contracts, the obligations of each Borrower hereunder shall be limited to marshal an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment comparable provisions of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been madeapplicable Debtor Relief Law.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such ObligationObligations.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 13.1 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 13.1, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 13.1, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 13.1 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 13.1 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 13.1 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 13.1 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 13.1 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, the obligations of each Borrower hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under section 548 of the Bankruptcy Code or any comparable provisions of any applicable state law.
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower’s Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 13.1(h) shall be subordinate and subject in right of payment to the prior payment in full of the Obligations of such Borrower under the other provisions of this Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Obligations. For purposes hereof, (i) “Excess Funding Borrower” shall mean, in respect of any Obligations arising under the other provisions of this Agreement (hereafter, the “Joint Obligations”), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) “Excess Payment” shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) “Pro Rata Share”, for the purposes of this Section 13.1(h), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair salable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of the First Amendment Closing Date (if any Borrower becomes a party hereto subsequent to the First Amendment Closing Date, then for the purposes of this Section 13.1(h) such subsequent Borrower shall be deemed to have been a Borrower as of the First Amendment Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the First Amendment Closing Date).
Appears in 1 contract
Samples: Credit Agreement (Unifi Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 2.14), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, ; then in each such event the other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 2.14 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and any promissory note issued hereunder, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all surety ship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent and the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Administrative Agent and the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Administrative Agent or any Lender may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which any Administrative Agent or any Lender may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower. If for any reason the other Borrower has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from the other Borrower by reason of such other Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Administrative Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 2.14, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 2.14, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 2.14 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 2.14 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Lenders. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from the other Borrower on a continuing basis all information desired by such Borrower concerning the financial condition of the other Borrower and that each such Borrower will look to the other Borrower and not to the Administrative Agent or any Lender in order for such Borrower to keep adequately informed of changes in the Lendersother Borrower’s respective financial conditions.
(f) The provisions of this §4.11 Section 2.14 are made for the benefit of the Lenders and the Administrative Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any either or all both of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lenders, the Administrative Agent or such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any the other Borrower or to exhaust any remedies available to it or them against any the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 2.14 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, ; made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender or any Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2.14 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been indefeasibly paid in full in cash. Any claim which any Borrower may have against the other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefore.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to the other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of the other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders to be applied to repay the Obligations.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 14.19 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.19 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code), after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Credit Party under applicable law or the Contribution Agreement.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.19 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of 104 every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.19, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.19, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 14.19 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.19 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to 105 the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 14.19(h) shall be subordinate and subject in right of payment to the prior payment in full of the Obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this Section 14.19(h), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair salable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of the Closing Date (if any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of this Section 14.19(h) such subsequent Borrower shall be deemed to have been a Borrower as of the Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the Closing Date).
Appears in 1 contract
Samples: Credit Agreement (Chiquita Brands International Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the ObligationsLiabilities.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations Liabilities (including, without limitation, any Obligations Liabilities arising under this §4.11Section 2-5), it being the intention of the parties hereto that all of the Obligations Liabilities shall be the joint and several Obligations obligations of each of the Borrowers Borrowers, without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations Liabilities as and when due or to perform any of the Obligations Liabilities in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such ObligationLiability.
(d) The Obligations Liabilities of each of the Borrowers under the provisions of this §4.11 Section 2-5 constitute the full recourse Obligations Liabilities of each of the Borrowers enforceable against each such Person Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or L/Cs issued under this Credit Agreement, notice of the occurrence of any Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by any Lender or the Lenders Administrative Agent under or in respect of any of the ObligationsLiabilities, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsLiabilities, the acceptance of any payment of any of the ObligationsLiabilities, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender or the Lenders Administrative Agent at any time or times in respect of any default Event of Default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Lender or the Lenders Administrative Agent in respect of any of the ObligationsLiabilities, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations Liabilities or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of any Lender or the Lenders Administrative Agent with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLiabilities, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11Section 2-5, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations Liabilities under this §4.11Section 2-5, it being the intention of each of the Borrowers that, so long as any of the Obligations Liabilities hereunder remain unsatisfied, the Obligations Liabilities of such Borrowers under this §4.11 Section 2-5 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrowers, any Lender or the Lendersany Agent.
(f) The provisions of this §4.11 Section 2-5 are made for the benefit of the Lenders and the Administrative Agent and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Agent or such successor or assign first to marshal mxxxxxxx any of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations Liabilities hereunder or to elect any other remedy. The provisions of this §4.11 Section 2-5 shall remain in effect until all of the Obligations Liabilities shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the ObligationsLiabilities, is rescinded or must otherwise be restored or returned by any Lender or the Lenders Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 2-5 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Agent with respect to any of the Liabilities or any collateral security therefor until such time as all of the Liabilities have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Liabilities arising hereunder or thereunder, to the prior payment in full of the Liabilities and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Liabilities shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Liabilities. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sxx for or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Liabilities shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Agent and be paid over to the Agent for the pro-rata accounts of the Lenders to be applied to repay the Liabilities.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent, the Issuing Bank and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the each other BorrowersBorrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each all of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event the each other Borrowers Borrower will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 ss.5.12 constitute full recourse Obligations the absolute and unconditional obligations of each of the Borrowers such Borrower enforceable against each such Person it to the full extent of its properties and assetspermitted under the terms hereof, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementfor herein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any the Loans made under this Credit Agreement, notice of the occurrence of any Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Issuing Bank or the Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Issuing Bank or the Lenders at any time or times in respect of any default by any of the Borrowers or Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent, the Issuing Bank or the Lenders in respect of any of the Obligationsobligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations such obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower or any Guarantor. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Administrative Agent, the Issuing Bank or the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations Applicable Laws thereunder, which might, but for the provisions of this §4.11ss.5.12, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations under this §4.11ss.5.12, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers Borrower under this §4.11 ss.5.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of Except as otherwise expressly provided for herein, the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of Borrower or the Borrowers Administrative Agent, the Issuing Bank or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent, the Issuing Bank or the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 ss.5.12 will forthwith be reinstated in effect, as though such payment had not been made.
(f) Each Borrower appoints the Borrowers' Representative as its authorized representative to make loan request, receive funds and notice and to take all other actions under this Agreement and the other Loan Documents on its behalf.
Appears in 1 contract
Samples: Revolving Credit, Tranche B Loan and Security Agreement (Mayors Jewelers Inc/De)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 14.21 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided herein or in this the other Credit AgreementDocuments, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any Loans Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders any Lender at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 14.21, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 14.21, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 14.21 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 14.21 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Lendersany Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect 100 notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) The provisions of this §4.11 Section 14.21 are made for the benefit of the Lenders and their respective successors and assigns, and may be enforced by any such Person from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of their its claims or to exercise any of their its rights against any of the other Borrower Borrowers or to exhaust any remedies available to them it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 14.21 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders any Lender upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 14.21 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the U.S. federal Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B) below), pay to such Excess Funding Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess Payment (as defined below). The payment obligation of any Borrower to any Excess Funding Borrower under this Section 14.21(h) shall be subordinate and subject in right of payment to the prior payment in full of the Obligations of such Borrower under the other provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such Obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Obligations arising under the other provisions of this Credit Agreement (hereafter, the "Joint Obligations"), a Borrower that has paid an amount in excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of any Joint Obligations, the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for the purposes of this Section 14.21(h), shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Borrower (including contingent, subordinated, 101 unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower hereunder) to (B) the amount by which the aggregate present fair salable value of all assets and other properties of such Borrower and all of the other Borrowers exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Borrower and the other Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of the Closing Date (if any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of this Section 14.21(h) such subsequent Borrower shall be deemed to have been a Borrower as of the Closing Date and the information pertaining to, and only pertaining to, such Borrower as of the date such Borrower became a Borrower shall be deemed true as of the Closing Date).
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower of the Borrowers to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrowers jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each of the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Credit Agreement, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each all of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations obligations of each of the Borrowers under the provisions of this §4.11 Section 5.14 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein or as required by applicable law, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any and all Loans made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement, except for those specifically provided for herein or in any of the other Loan Documents. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsBanks, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 5.14, afford grounds provide a suretyship type defense for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 5.14, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 5.14 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 Section 5.14 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any of the Borrowers or any of the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or any of the LendersBanks.
(f) The provisions of this §4.11 Section 5.14 are made for the benefit of the Lenders Banks and their successors and assigns, and may be enforced by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Banks first to marshal marshall any of their claims or to claimx xx xx exercise any of their rights against any of the other Borrower Borrowers or to exhaust any remedies available to them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 5.14 shall remain in effect until all of the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 5.14 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks and the Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11Section 6.11), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.. 49 -41-
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 Section 6.11 constitute the full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or the other Loan Documents or any other circumstance whatsoeverwhatsoever as to any other Borrower.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives promptness, diligence, presentment, demand, protest, notice of acceptance of its joint and several liability, notice of any and all advances of the Loans made under this Credit Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement or any of the other Loan Documents), or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Agent or the Banks under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit AgreementAgreement and the other Loan Documents. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Agent and the Banks at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement and the other Loan Documents, any and all other indulgences whatsoever by the Lenders Agent and the Banks in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower or any other entity or Person primarily or secondarily liable for any Obligation. Such Borrower further agrees that its Obligations shall not be released or discharged, in whole or in part, or otherwise affected by the adequacy of any rights which the Agent or any Bank may have against any collateral security or other means of obtaining repayment of any of the BorrowersObligations, the impairment of any collateral security securing the Obligations, including, without limitation, the failure to protect or preserve any rights which the Agent or any Bank may have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security, any other act or omission which might in any manner or to any extent vary the risk of such Borrower, or otherwise operate as a release or discharge of such Borrower, all of which may be done without notice to such Borrower; provided, however, that the foregoing shall in no way be deemed to create commercially unreasonable standards as to the Agent's duties as secured party under the Loan Documents (as such rights and duties are set forth therein). If for any reason any of the other Borrowers has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from any of the other Borrowers by reason of such other Borrower's insolvency, bankruptcy or reorganization or by 50 -42- other operation of law or for any reason, this Credit Agreement and the other Loan Documents to which it is a party shall nevertheless be binding on such Borrower to the same extent as if such Borrower at all times had been the sole obligor on such Obligations. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to Agent and the failure by any of the Borrowers to comply with any of its respective ObligationsBanks, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 6.11, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 6.11, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 6.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers Borrower under this §4.11 Section 6.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any reconstruction or similar proceeding with respect to any other Borrower, or any of the Borrowers or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, ownership, membership, constitution or place of formation of any Borrower or the Banks. Each of the Borrowers acknowledges and confirms that it has itself established its own adequate means of obtaining from each of the other Borrowers on a continuing basis all information desired by such Borrower concerning the financial condition of each of the other Borrowers and that each such Borrower will look to each of the other Borrowers and not to the Agent or any Bank in order for such Borrower to keep adequately informed of changes in each of the Lendersother Borrowers' respective financial conditions.
(f) The provisions of this §4.11 Section 6.11 are made for the benefit of the Lenders Banks and the Agent and their respective permitted successors and assigns, and may be enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Banks or the Agent or such successor or assign first to marshal any marsxxxx xxx of its or their claims or to exercise any of its or their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 6.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Bank or the Lenders Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 6.11 will forthwith be reinstated in effect, as though such payment had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any of its rights of reimbursement, contribution, subrogation or the like against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Banks or the Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Banks or the Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue xxx or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Agent and be paid over to the Agent for the pro rata accounts of the Banks to be applied to repay the Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Dave & Busters Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.114.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 4.12 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders Banks under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement, including without limitation, those rights set forth in Sections 26-7 through 26-9 of the North Carolina General Statutes. Each Borrower hereby waives all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshaling of assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders Banks at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders Banks in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders Banks with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.114.12, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.114.12, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 4.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 4.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers or the LendersBanks. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the LendersBanks.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Borrower, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Banks or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Banks or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Banks (in accordance with each Bank’s Loan Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §4.11 4.12 are made for the benefit of the Lenders Banks and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Lenders Banks first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 4.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §4.11 4.12 will forthwith be reinstated in effect, as though such payment had not been made.
(i) Each of the Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as its representative and authorized xxxxxx with respect to any notices, demands, communications or requests under this Credit Agreement or the other Loan Documents, including, without limitation, with respect to Loan and Letter of Credit Requests and Compliance Certificates and pursuant to §20 of this Credit Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Industries Usa Inc)
Concerning Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligationsobligations of each of them.
(b) Each of the Borrowers, Borrower jointly and severally, severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11)Credit Agreement, it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers Borrower shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event event, the other Borrowers will make such payment with respect to, or perform, such Obligationobligation.
(d) The Obligations obligations of each of the Borrowers Borrower under the provisions of this §4.11 Section 5.13 constitute full recourse Obligations obligations of each of the Borrowers such Borrower, enforceable against each such Person it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance circumstances whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreementherein, each of the Borrowers Borrower hereby waives notice of acceptance of its joint and several liability, notice of any and all Revolving Credit Loans made under this Credit Agreement, notice of occurrence of any Event of Default, or of any demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the ObligationsObligations hereunder, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any of the BorrowersBorrower. Without limiting the generality of the foregoing, each of the Borrowers Borrower assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective ObligationsLenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this §4.11Section 5.13, afford grounds for terminating, discharging or relieving any of the Borrowerssuch Borrower, in whole or in part, from any of its Obligations obligations under this §4.11Section 5.13, it being the intention of each of the Borrowers Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of such Borrowers Borrower under this §4.11 Section 5.13 shall not be discharged except by performance and then only to the extent of such performance. The Obligations obligations of each of the Borrowers Borrower under this §4.11 Section 5.13 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction reconstruction or similar proceeding with respect to any of the Borrowers reconstruction or the Lenderssimilar proceeding with respect to any Borrower or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers Borrower or the Lendersany Lender.
(f) Each Borrower hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of --- ---- the Lenders to be applied to repay the Obligations.
(g) The provisions of this §4.11 Section 5.13 are made for the benefit of the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 Section 5.13 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 Section 5.13 will forthwith be reinstated in effect, as though such payment had not been made.
Appears in 1 contract
Samples: Revolving Credit Agreement (Us Xpress Enterprises Inc)
