Common use of Concerning Joint and Several Liability of the Borrowers Clause in Contracts

Concerning Joint and Several Liability of the Borrowers. Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodations to be provided by the Agents, the Acceptance Bank, the Issuing Bank 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 of the Borrowers to accept joint and several liability for the 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 each other Borrower, with respect to the payment and performance of all of the Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of all of the Borrowers without preferences or distinction among them. 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 such Obligations in accordance with the terms thereof, then in each such event each other Borrower will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower under the provisions of this ss.5.11 constitute the absolute and unconditional obligations of such Borrower enforceable against it to the full extent permitted under the terms hereof, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstance whatsoever. Except as otherwise expressly provided for herein, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of the Loans made under this Agreement, notice of the occurrence of any Default or Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the 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, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent, the Acceptance Bank, the Issuing Bank or the Lenders at any time or times in respect of any default by any Obligor in the performance or satisfaction of any term, covenant, condition or provision of this 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 obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of any Obligor. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of the Agent, the Acceptance Bank, the Issuing Bank or the Lenders including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this ss.5.11, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its Obligations under this ss.5.11, it being the intention of each Borrower that, so long as any of the Obligations remain unsatisfied, the Obligations of such Borrower under this ss.5.11 shall not be discharged except by performance and then only to the extent of such performance. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Obligor or the Agent, the Acceptance Bank, the Issuing Bank or the Lenders. 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 Obligors, or otherwise, the provisions of this ss.5.11 will forthwith be reinstated in effect, as though such payment had not been made.

Concerning Joint and Several Liability of the Borrowers. 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 Agents, the Acceptance Bank, the Issuing Bank 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 of the Borrowers other Borrower to accept joint and several liability for the obligations of each of themObligations. 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 each the other Borrower, Borrowers with respect to the payment and performance of all of the ObligationsObligations (including, without limitation, any Obligations arising under this 5.13), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations Obligations of all of the Borrowers each Borrower without preferences or distinction among them. 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 such the Obligations in accordance with the terms thereof, then in each such event each the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. The obligations Obligations of each Borrower under the provisions of this ss.5.11 5.13 constitute the absolute and unconditional obligations full recourse Obligations of such each Borrower enforceable against it each such Borrower to the full extent permitted under the terms hereofof its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever. Except as otherwise expressly provided for hereinin this Credit Agreement, each Borrower Borrower, to the fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and several liability, notice of the any Loans made under this 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 Agent, the Acceptance Bank, the Issuing Bank 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 Borrower 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 Agent, the Acceptance Bank, the Issuing Bank or the Lenders at any time or times in respect of any default by any Obligor 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 Agent, the Acceptance Bank, the Issuing Bank or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of any Obligorof the Borrowers. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of the AgentLenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, the Acceptance Bank, the Issuing Bank or the Lenders including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this ss.5.115.13, afford grounds for terminating, discharging or relieving such Borrowerany of the Borrowers, in whole or in part, from any of its Obligations under this ss.5.115.13, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrower Borrowers under this ss.5.11 5.13 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this 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, 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 Obligor or of the AgentBorrowers, the Acceptance Bank, the Issuing Bank 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 (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. 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 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 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 Agent, the Acceptance Bank, the Issuing Bank Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of the ObligorsBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this ss.5.11 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.

Concerning Joint and Several Liability of the Borrowers. 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 Agents, the Acceptance Bank, the Issuing Bank and the Lenders Lender under this Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of themObligations. 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 each other Borrower, with respect to the payment and performance of all of the Obligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of all of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with With respect to any Borrower’s Obligations arising as a result of the Obligations as and when due or to perform any of such Obligations in accordance with the terms thereof, then in each such event each other Borrower will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower under the provisions of this ss.5.11 constitute the absolute and unconditional obligations of such Borrower enforceable against it to the full extent permitted under the terms hereof, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstance whatsoever. Except as otherwise expressly provided for herein, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of the Loans made under this Agreement, notice of the occurrence of any Default or Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the 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, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent, the Acceptance Bank, the Issuing Bank or the Lenders at any time or times in respect of any default by any Obligor in the performance or satisfaction of any term, covenant, condition or provision of this 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 obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of any Obligor. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of the Agent, the Acceptance Bank, the Issuing Bank or the Lenders including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this ss.5.11, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its Obligations under this ss.5.11, it being the intention of each Borrower that, so long as any of the Obligations remain unsatisfied, the Obligations of such Borrower under this ss.5.11 shall not be discharged except by performance and then only to the extent of such performance. The joint and several liability of the Borrowers hereunder shall continue with respect to Loans or other extensions of credit made to any of the other Borrowers hereunder, such Borrower hereby waives, as long as any Obligations are not paid in full force and effect notwithstanding the commitment of Lender under this Agreement has not been terminated, any absorption, merger, amalgamation right to enforce any right of subrogation or any remedy which Lender now has or may hereafter have against any other change whatsoever in the name, membership, constitution or place of formation of any Obligor or the Agent, the Acceptance Bank, the Issuing Bank or the Lenders. If at any time, any paymentBorrower, or any endorser 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 Lender to secure payment of the Obligations or returned by the Agent, the Acceptance Bank, the Issuing Bank or the Lenders upon the insolvency, bankruptcy or reorganization 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 ObligorsObligations, without first proceeding against any other Borrower or any other Person, or otherwise, against any security or collateral for the provisions Obligations. Each Borrower consents and agrees that Lender shall be under no obligation to marshal any assets in favor of this ss.5.11 will forthwith be reinstated any Borrower or against or in effect, as though such payment had not been madeof any or all of the Obligations.

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 Agents, the Acceptance Bank, the Issuing Bank and the Lenders Lender under this Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers such Borrower and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of themLiabilities. (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 each the other BorrowerBorrowers, with respect to the payment and performance of all of the ObligationsLiabilities, it being the intention of the parties hereto that all the Obligations Liabilities shall be the joint and several obligations Liabilities of all 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 such Obligations the Liabilities in accordance with the terms thereof, then in each such event each the other Borrower Borrowers will make such payment with respect to, or perform, such ObligationLiability. (d) The obligations Liabilities of each Borrower under the provisions this Agreement constitute full recourse Liabilities of this ss.5.11 constitute the absolute and unconditional obligations of such Borrower Borrowers enforceable against it each Borrower to the full extent permitted under the terms hereofof its properties and assets, irrespective of the validity, regularity regularity, or enforceability of this Agreement or any other circumstance whatsoever. (e) Except as otherwise expressly provided for hereinin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of the any Loans made under this Agreement, notice of the occurrence of any Default or Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent, the Acceptance Bank, the Issuing Bank or the Lenders Lender under or in respect of any of the ObligationsLiabilities, any requirement of diligence or and generally, to mitigate damages and, generallythe extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement. (f) Each Borrower 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 Liabilities, 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 Lender at any time or times in respect of any default by any Obligor other Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent, the Acceptance Bank, the Issuing Bank or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of any Obligor-------------------------------------------------------------------------------- Page 45 -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- BANKBOSTON RETAIL FINANCE INC. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of the Agent, the Acceptance Bank, the Issuing Bank or the Lenders including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this ss.5.11, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its Obligations under this ss.5.11, it being the intention of each Borrower that, so long as any of the Obligations remain unsatisfied, the Obligations of such Borrower under this ss.5.11 shall not be discharged except by performance and then only to the extent of such performance. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Obligor or the Agent, the Acceptance Bank, the Issuing Bank or the Lenders. 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 Obligors, or otherwise, the provisions of this ss.5.11 will forthwith be reinstated in effect, as though such payment had not been made.--------------------------------------------------------------------------------