Concerning Joint and Several Liability of the Guarantors. (a) To the fullest extent permitted by applicable law and subject to §7.1(b), each of the Guarantors hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the Applicable Borrowers, with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7), it being the intention of the parties hereto that (i) the U.S. Obligations shall be the joint and several Guaranteed Obligations of the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors without preferences or distribution among them. (b) If and to the extent that any Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, the applicable co-Guarantors will make such payment with respect to, or perform, such Guaranteed Obligations. (c) To the fullest extent permitted by applicable law, the Guaranteed Obligations of each Guarantor under the provisions of this §7 constitute full recourse obligations of such Guarantor enforceable against such Guarantor 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. (d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any Agent or any Lender under or in respect of any of the Guaranteed 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 and this Guaranty. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Agent or the Lenders at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any Agent with respect to the failure by any of the Borrowers or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §7, afford grounds for terminating, discharging or relieving any Guarantor, in whole or in part, from any of the Guaranteed Obligations under this §7, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders or any Agent. (e) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer and corporate financial assistance, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders or any Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents from any Loan Party, as the case may be. (f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor. (g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations. (h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) are made for the benefit of the Agents and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors 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 the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §7 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders or any Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 3 contracts
Samples: Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc), Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc), Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc)
Concerning Joint and Several Liability of the Guarantors. (a) To Each Guarantor accepts joint and several liability for the fullest extent permitted by applicable law Obligations hereunder and subject to §7.1(b), each under the other Loan Documents in consideration of the Guarantors financial accommodations to be provided by the Administrative Agent and the Lenders under the Loan Agreement, for the mutual benefit, directly and indirectly, of each Guarantor and in consideration of the undertakings of each other Guarantor to accept joint and several liability for the Obligations.
(b) Each Guarantor, 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 Applicable Borrowers, other Guarantors with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed the Obligations arising under this §7), it being the intention of the parties hereto that (i) the U.S. Obligations shall be the joint and several Guaranteed Obligations of the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors Guaranty without preferences or distribution distinction among them.
(b) If and to the extent that any Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, the applicable co-Guarantors will make such payment with respect to, or perform, such Guaranteed Obligations.
(c) To the fullest extent permitted by applicable law, the Guaranteed Obligations The obligations of each Guarantor under the provisions of this §7 Guaranty constitute full recourse obligations of such each Guarantor enforceable against each such Guarantor to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit the Loan Agreement or any other Loan Documents or any other circumstance whatsoever.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any Agent or any Lender under or in respect of any of the Guaranteed 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 and this Guaranty. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Agent or the Lenders at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any Agent with respect to the failure by any of the Borrowers or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §7, afford grounds for terminating, discharging or relieving any Guarantor, in whole or in part, from any of the Guaranteed Obligations under this §7, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders or any Agent.
(e) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer and corporate financial assistance, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders or any Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents from any Loan Party, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Loan Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors Guarantor hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws application of any jurisdiction Debtor Relief Laws relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(ge) Each It is the intention and agreement of the Guarantors hereby agrees and the Lenders that the payment obligations of any amounts due with respect the Guarantors under this Guaranty shall be valid and enforceable against each Guarantor to the indebtedness owing maximum extent permitted by applicable law. If any Guarantor provision of this Guaranty creating any obligation of the Guarantors 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 Guarantors and the Lenders that any balance of the obligation created by such provision and all other Guarantor or any Borrower is hereby subordinated obligations of the Guarantors to the prior payment Lenders created by other provisions of this Guaranty 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 a Guarantor under this Guaranty to be in full in cash excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to such Guarantor’s obligations under this Guaranty, it is the stated intention and agreement of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence Guarantors and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Agents and be paid over Lenders from such Guarantor.
(f) Each Guarantor makes as to the Applicable Agentitself, for the benefit of the Applicable Lenders Administrative Agent and the Applicable AgentLenders, the representations applicable to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit it contained in Article V of the Guarantors) are made for the benefit of the Agents and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors 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 the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §7 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders or any Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any LenderLoan Agreement.
Appears in 3 contracts
Samples: Term Loan Agreement (Panera Bread Co), Term Loan Agreement (Panera Bread Co), Term Loan Agreement (Panera Bread Co)
Concerning Joint and Several Liability of the Guarantors. (a) To the fullest extent permitted by applicable law and subject to §7.1(b), each Each of the Guarantors hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the Applicable BorrowersBorrower, with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7Section 28), it being the intention of the parties hereto that (i) the U.S. all such Guaranteed Obligations shall be the joint and several Guaranteed Obligations of such Guarantor and the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors Borrower without preferences or distribution distinction among them.
(b) If and to the extent that any the Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Guaranteed Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, event the applicable co-Guarantors Guarantor will make such payment with respect to, or perform, such Guaranteed ObligationsObligation.
(c) To the fullest extent permitted by applicable law, the The Guaranteed Obligations of each Guarantor under the provisions of this §7 Section 28 constitute full recourse obligations of such Guarantor enforceable against such Guarantor 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.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made made, or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any Agent the Administrative Agent, the Issuing Banks or any Lender the Banks under or in respect of any of the Guaranteed 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 and this GuarantyAgreement. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Agent the Administrative Agent, the Issuing Banks or the Lenders Banks at any time or times in respect of any Default or Event of Default by any of the Borrowers Borrower or the Guarantors 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 any Agent the Administrative Agent, the Issuing Banks or the Lenders Banks in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers Borrower or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders Banks, the Issuing Banks or any the Administrative Agent with respect to the failure by any of the Borrowers Borrower or any other Guarantor to comply with its respective Obligations or Guaranteed 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 law or regulations thereunder, which might, but for the provisions of this §7Section 28, afford grounds for terminating, discharging or relieving any Guarantorthe Guarantors, in whole or in part, from any of the Guaranteed Obligations under this §7Section 28, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 Section 28 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 Section 28 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration reconstruction or similar proceeding with respect to the Borrower or any of the Borrowers or the Guarantors or the Lenders Banks, the Issuing Banks or any the Administrative Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers Borrower or the Guarantors, the Lenders Banks, the Issuing Banks or any the Administrative Agent.
(e) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 Section 28 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7, Section 28 voidable under applicable law relating to fraudulent conveyance, conveyance and fraudulent transfer and corporate financial assistancetransfer, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 Section 28 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents Administrative Agent, the Issuing Banks and the Lenders Banks that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 Section 28 to the Lenders Banks, the Issuing Banks or any the Administrative Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders Banks, the Issuing Banks and the Agents Administrative Agent from any Loan Partythe Borrower or the Guarantors, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) Section 28 are made for the benefit of the Agents Administrative Agent, the Issuing Banks and the Lenders Banks and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors as often as occasion therefor may arise and without requirement on the part of the Agents Administrative Agent, the Issuing Banks or the Lenders Banks first to marshal any of their claims or to exercise any of their rights against the Borrowers Borrower or the Guarantors or to exhaust any remedies available to them against the Borrowers Borrower or the Guarantors 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 §7 Section 28 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks, the Issuing Banks or any the Administrative Agent upon the insolvency, bankruptcy or reorganization of the Borrower or any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 Section 28 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 3 contracts
Samples: Quarterly Report, Quarterly Report, Revolving Credit Agreement (Waste Management Inc)
Concerning Joint and Several Liability of the Guarantors. (a) To Each of the fullest extent permitted Guarantors is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by applicable law the Agent and subject to §7.1(b)the Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Guarantors and in consideration of the undertakings of each other Guarantor to accept joint and several liability for the Guaranteed Obligations.
(b) Each of the Guarantors, 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 Applicable BorrowersBorrower and the other Guarantors, with respect to the payment and performance of all of its the Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7Section 29), it being the intention of the parties hereto that (i) all the U.S. Guaranteed Obligations shall be the joint and several Guaranteed Obligations obligations of each of the U.S. Guarantors and, solely in its capacity as a Guarantor of Borrower and the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors without preferences or distribution distinction among them.
(bc) If and to the extent that the Borrower or any Borrower Guarantor shall fail to make any payment with respect to any of its the Guaranteed Obligations as and when due or to perform any of its the Guaranteed Obligations in accordance with the terms thereof, then in each such event, to event the fullest extent permitted by applicable law, the applicable co-other Guarantors will make such payment with respect to, or perform, such Guaranteed ObligationsObligation.
(cd) To The Guaranteed Obligations of TRC, PRI and PMC shall be limited in recourse to the fullest extent permitted Equity Interests in the Borrower owned by applicable law, the each such Person. The Guaranteed Obligations of each Guarantor of the other Guarantors under the provisions of this §7 Section 29 constitute full recourse obligations of each of such Guarantor Guarantors enforceable against each such Guarantor 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.
(de) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any the Agent or any Lender the Banks under or in respect of any of the Guaranteed 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 and this GuarantyAgreement. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any the Agent or the Lenders Banks at any time or times in respect of any Default or Event of Default default by any of the Borrowers Borrower or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any the Agent or the Lenders Banks in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers Borrower or any other Guarantorthe Guarantors. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders Banks or any the Agent with respect to the failure by any of the Borrowers Borrower or any other Guarantor the Guarantors to comply with any of its respective Obligations or Guaranteed 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 §7Section 29, afford grounds for terminating, discharging or relieving any Guarantorof the Borrower or the Guarantors, in whole or in part, from any of the its Guaranteed Obligations under this §7hereunder, it being the intention of each of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the such Guarantors under this §7 Section 29 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 Section 29 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Guarantors or the Lenders Banks or any the Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers Borrower or any of the Guarantors or any of the Banks or the Guarantors, the Lenders or any Agent.
(ef) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Each Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 Credit Agreement only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7such Guarantor, voidable under applicable law relating to fraudulent conveyance, conveyance and fraudulent transfer and corporate financial assistancetransfer, and not for any greater amount. Accordingly, if any provisions of this Credit Agreement creating any obligation under of any provision Guarantor in favor of any Bank or the guaranty under this §7 Agent shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents Agent, and the Lenders Banks that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders Banks or any the Agent created by other provisions of this Credit Agreement shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders Banks and the Agents from any Loan Party, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover Agent from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) Section 29 are made for the benefit of the Agents Agent and 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 Guarantors as often as occasion therefor may arise and without requirement on the part of the Agents Agent or the Lenders Banks first to marshal any of their claims or to exercise any of their rights against the Borrowers Borrower or the any other Guarantors or to exhaust any remedies available to them against the Borrowers Borrower or the any other Guarantors 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 §7 Section 29 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks, or any the Agent upon the insolvency, bankruptcy or reorganization of the Borrower or any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 Section 29 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Restaurant Co), Revolving Credit Agreement (Perkins Finance Corp)
Concerning Joint and Several Liability of the Guarantors. (a) To the fullest extent permitted by applicable law and subject to §7.1(b), each of the Guarantors hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the Applicable Borrowers, with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7), it being the intention of the parties hereto that (i) the U.S. Obligations shall be the joint and several Guaranteed Obligations of the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors without preferences or distribution among them.
(b) If and to the extent that any Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, the applicable co-Guarantors will make such payment with respect to, or perform, such Guaranteed Obligations.
(c) To the fullest extent permitted by applicable law, the Guaranteed Obligations of each Guarantor under the provisions of this §7 constitute full recourse obligations of such Guarantor enforceable against such Guarantor 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.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any Agent or any Lender under or in respect of any of the Guaranteed 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 and this Guaranty. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Agent or the Lenders at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any Agent with respect to the failure by any of the Borrowers or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §7, afford grounds for terminating, discharging or relieving any Guarantor, in whole or in part, from any of the Guaranteed Obligations under this §7, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders or any Agent.
(e) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer and corporate financial assistance, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders or any Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents from any Loan Party, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) are made for the benefit of the Agents and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors 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 the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §7 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders or any Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 2 contracts
Samples: Credit Agreement (Genesee & Wyoming Inc), Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc)
Concerning Joint and Several Liability of the Guarantors. (a) To Each of the fullest extent permitted Guarantors is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by applicable law the Agent and subject to §7.1(b)the Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Guarantors and in consideration of the undertakings of each other Guarantor to accept joint and several liability for the Guaranteed Obligations.
(b) Each of the Guarantors, 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 Applicable BorrowersBorrower and the other Guarantors, with respect to the payment and performance of all of its the Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7ss.29), it being beinG the intention of the parties hereto that (i) all the U.S. Guaranteed Obligations shall be the joint and several Guaranteed Obligations obligations of each of the U.S. Guarantors and, solely in its capacity as a Guarantor of Borrower and the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors without preferences or distribution distinction among them.
(bc) If and to the extent that the Borrower or any Borrower Guarantor shall fail to make any payment with respect to any of its the Guaranteed Obligations as and when due or to perform any of its the Guaranteed Obligations in accordance with the terms thereof, then in each such event, to event the fullest extent permitted by applicable law, the applicable co-other Guarantors will make such payment with respect to, or perform, such Guaranteed ObligationsObligation.
(cd) To the fullest extent permitted by applicable law, the The Guaranteed Obligations of each Guarantor of the Guarantors under the provisions of this §7 ss.29 constitute full recourse obligations of such Guarantor each of the Guarantors enforceable against each such Guarantor 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.
(de) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any the Agent or any Lender 83 -76- the Banks under or in respect of any of the Guaranteed 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 and this GuarantyAgreement. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any the Agent or the Lenders Banks at any time or times in respect of any Default or Event of Default default by any of the Borrowers Borrower or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any the Agent or the Lenders Banks in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers Borrower or any other Guarantorthe Guarantors. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders Banks or any the Agent with respect to the failure by any of the Borrowers Borrower or any other Guarantor the Guarantors to comply with any of its respective Obligations or Guaranteed 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 §7ss.29, afford grounds for terminating, discharging or relieving any Guarantorof the Borrower or the Guarantors, in whole or in part, from any of the its Guaranteed Obligations under this §7hereunder, it being the intention of each of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the such Guarantors under this §7 ss.29 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 ss.27 shall not be diminished or rendered rendereD unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration reconstruction or similar proceeding with respect to any of the Borrowers Borrower or the Guarantors or the Lenders Banks or any the Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers Borrower or any of the Guarantors or any of the Banks or the Guarantors, the Lenders or any Agent.
(ef) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Each Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 Credit Agreement only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7such Guarantor, voidable under applicable law relating to fraudulent conveyance, conveyance and fraudulent transfer and corporate financial assistancetransfer, and not for any greater amount. Accordingly, if any provisions of this Credit Agreement creating any obligation under of any provision Guarantor in favor of any Bank or the guaranty under this §7 Agent shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents Agent, and the Lenders Banks that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders Banks or any the Agent created by other provisions of this Credit Agreement shall remain valid 84 -77- and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders Banks and the Agents from any Loan Party, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover Agent from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) ss.29 are made for the benefit of the Agents Agent and the Lenders and 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 Guarantors as often as occasion therefor may arise and without requirement on the part of the Agents Agent or the Lenders Banks first to marshal any of their claims or to exercise any of their rights against the Borrowers Borrower or the any other Guarantors or to exhaust any remedies available to them against the Borrowers Borrower or the any other Guarantors 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 §7 ss.29 shall remain in effect effecT until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks, or any the Agent upon the insolvency, bankruptcy or reorganization of the Borrower or any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 ss.29 will forthwith be reinstated in effect, as though such payment had haD not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Perkins Family Restaurants Lp)
Concerning Joint and Several Liability of the Guarantors. (a) To Each of the fullest Guarantors is accepting joint and several liability hereunder and under the other Loan Documents to the extent permitted set for in Section 29.1 in consideration of the financial accommodations to be provided by applicable law the Agent and subject to §7.1(b)the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Guarantors and in consideration of the undertakings of each other Guarantor to accept joint and several liability for the Guaranteed Obligations.
(b) Each of the Guarantors, jointly and severally, hereby irrevocably and unconditionally accepts, accepts not merely as a surety but also as a co-debtor, joint and several liability with the Applicable BorrowersBorrowers and the other Guarantors to the extent set forth in Section 29.1, with respect to the payment and performance of all of its the Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7Section 29), it being the intention of the parties hereto that (i) all the U.S. Guaranteed Obligations shall be the joint and several Guaranteed Obligations obligations of each of the U.S. Guarantors and, solely in its capacity as a Guarantor of Borrowers and the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors without preferences or distribution distinction among them.
(bc) If and to the extent that the Borrowers or any Borrower Guarantor shall fail to make any payment with respect to any of its the Guaranteed Obligations as and when due or to perform any of its the Guaranteed Obligations in accordance with the terms thereof, then in each such event, to event the fullest extent permitted by applicable law, the applicable co-other Guarantors will make such payment with respect to, or perform, such Guaranteed ObligationsObligation.
(cd) To the fullest extent permitted by applicable law, the The Guaranteed Obligations of each Guarantor of the Guarantors under the provisions of this §7 Section 29 constitute full recourse obligations of such Guarantor each of the Guarantors enforceable against such each Guarantor 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.
(de) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued or Banker's Acceptances accepted and/or purchased under this Credit Agreement, notice of any action at any time taken or omitted by any the Agent or any Lender the Lenders under or in respect of any of the Guaranteed 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 and this GuarantyAgreement. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any the Agent or the Lenders at any time or times in respect of any Default or Event of Default default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any the Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantorthe Guarantors. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any the Agent with respect to the failure by any of the Borrowers or any other Guarantor the Guarantors to comply with any of its respective Obligations or Guaranteed 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 §7Section 29, afford grounds for terminating, discharging or relieving any Guarantorof the Borrowers or the Guarantors, in whole or in part, from any of the its Guaranteed Obligations under this §7hereunder, it being the intention of each of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the such Guarantors under this §7 Section 29 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 Section 29 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration reconstruction or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any the Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or any of the Guarantors, Guarantors or any of the Lenders or any the Agent.
(ef) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Each Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 Credit Agreement only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7such Guarantor, voidable under applicable law relating to fraudulent conveyance, conveyance and fraudulent transfer and corporate financial assistancetransfer, and not for any greater amount. Accordingly, if any provisions of this Credit Agreement creating any obligation under of any provision Guarantor in favor of any Lender or the guaranty under this §7 Agent shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents Agent, and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders or any the Agent created by other provisions of this Credit Agreement shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents from any Loan Party, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover Agent from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) Section 29 are made for the benefit of the Agents 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 Guarantors as often as occasion therefor may arise and without requirement on the part of the Agents Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against the Borrowers or the any other Guarantors or to exhaust any remedies available to them against the Borrowers or the any other Guarantors 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 §7 Section 29 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Revolving Credit Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders Lenders, or any the Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or any of the Guarantors, or otherwise, the provisions of this §7 Section 29 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Russell-Stanley Holdings Inc)
Concerning Joint and Several Liability of the Guarantors. (a) To the fullest extent permitted by applicable law and subject to §7.1(b), each Each of the Guarantors hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the Applicable Borrowersapplicable Borrower(s), with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7Section 29), it being the intention of the parties hereto that (i) the U.S. all such Guaranteed Obligations shall be the joint and several Guaranteed Obligations of such Guarantor and the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (iiapplicable Borrower(s) the Foreign Obligations shall be the joint and several Obligations of all Guarantors without preferences or distribution distinction among them.
(b) If and to the extent that any Borrower the applicable Borrower(s) shall fail to make any payment with respect to any of its Guaranteed Obligations as and when due or to perform any of its Guaranteed Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, event the applicable co-Guarantors Guarantor will make such payment with respect to, or perform, such Guaranteed ObligationsObligation.
(c) To the fullest extent permitted by applicable law, the The Guaranteed Obligations of each Guarantor under the provisions of this §7 Section 29 constitute full recourse obligations of such Guarantor enforceable against such Guarantor 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.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made made, Bankers' Acceptances accepted or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any Agent the Bank Agents, the Issuing Banks or any Lender the Banks under or in respect of any of the Guaranteed 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 and this GuarantyAgreement. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Agent the Bank Agents, the Issuing Banks or the Lenders Banks at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors 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 any Agent the Bank Agents, the Issuing Banks or the Lenders Banks in respect of any of the Guaranteed Obligations, and the taking, addition, substitution or release, in whole or in part, at any time 108 -102- or times, of any security for any of the Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders Banks, the Issuing Banks or any Agent the Bank Agents with respect to the failure by any of the Borrowers or any the other Guarantor to comply with its respective Obligations or Guaranteed 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 §7Section 29, afford grounds for terminating, discharging or relieving any Guarantorthe Guarantors, in whole or in part, from any of the Guaranteed Obligations under this §7Section 29, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 Section 29 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 Section 29 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration reconstruction or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders Banks, the Issuing Banks or any Agentthe Bank Agents. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders Banks, the Issuing Banks or any Agentthe Bank Agents.
(e) The U.S. GuarantorsSanifill, each Domestic Borrower (and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations of the Canadian Borrowers under this §7) and each of Section 29, the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations)Company, shall be liable under the Guaranty under this §7 Section 29 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7Section 29, voidable under applicable law relating to fraudulent conveyance, conveyance and fraudulent transfer and corporate financial assistancetransfer, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 Section 29 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents Bank Agents, the Issuing Banks and the Lenders Banks that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 Section 29 to the Lenders Banks, the Issuing Banks or any Agent the Bank Agents shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders Banks, the Issuing Banks and the Bank Agents from any Loan PartySanifill or the Company, as the case may be.. 109 -103-
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) Section 29 are made for the benefit of the Agents Bank Agents, the Issuing Banks and the Lenders Banks and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors as often as occasion therefor may arise and without requirement on the part of the Agents Bank Agents, the Issuing Banks or the Lenders Banks first to marshal any of their claims or to exercise any of their rights against the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §7 Section 29 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Domestic Commitments and Canadian Commitments have expired and all outstanding Letters of Credit and Bankers' Acceptances have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks, the Issuing Banks or any Agent the Bank Agents upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 Section 29 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Usa Waste Services Inc)
Concerning Joint and Several Liability of the Guarantors. (a) To Each Guarantor accepts joint and several liability for the fullest extent permitted by applicable law Obligations hereunder and subject to §7.1(b), each under the other Loan Documents in consideration of the Guarantors financial accommodations to be provided by the Administrative Agent and the Lenders under the Credit Agreement, for the mutual benefit, directly and indirectly, of each Guarantor and in consideration of the undertakings of each other Guarantor to accept joint and several liability for the Obligations.
(b) Each Guarantor, 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 Applicable Borrowers, other Guarantors with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed the Obligations arising under this §7), it being the intention of the parties hereto that (i) the U.S. Obligations shall be the joint and several Guaranteed Obligations of the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors Guaranty without preferences or distribution distinction among them.
(b) If and to the extent that any Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, the applicable co-Guarantors will make such payment with respect to, or perform, such Guaranteed Obligations.
(c) To the fullest extent permitted by applicable law, the Guaranteed Obligations The obligations of each Guarantor under the provisions of this §7 Guaranty constitute full recourse obligations of such each Guarantor enforceable against each such Guarantor to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this the Credit Agreement or any other Loan Documents or any other circumstance whatsoever.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any Agent or any Lender under or in respect of any of the Guaranteed 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 and this Guaranty. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Agent or the Lenders at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any Agent with respect to the failure by any of the Borrowers or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §7, afford grounds for terminating, discharging or relieving any Guarantor, in whole or in part, from any of the Guaranteed Obligations under this §7, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders or any Agent.
(e) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer and corporate financial assistance, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders or any Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents from any Loan Party, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors Guarantor hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws application of any jurisdiction Debtor Relief Laws relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(ge) Each It is the intention and agreement of the Guarantors hereby agrees and the Lenders that the payment obligations of any amounts due with respect the Guarantors under this Guaranty shall be valid and enforceable against each Guarantor to the indebtedness owing maximum extent permitted by applicable law. If any Guarantor provision of this Guaranty creating any obligation of the Guarantors 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 Guarantors and the Lenders that any balance of the obligation created by such provision and all other Guarantor or any Borrower is hereby subordinated obligations of the Guarantors to the prior payment Lenders created by other provisions of this Guaranty 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 a Guarantor under this Guaranty to be in full in cash excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to such Guarantor’s obligations under this Guaranty, it is the stated intention and agreement of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence Guarantors and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Agents and be paid over Lenders from such Guarantor.
(f) Each Guarantor makes as to the Applicable Agentitself, for the benefit of the Applicable Lenders Administrative Agent and the Applicable AgentLenders, the representations applicable to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit it contained in Article V of the Guarantors) are made for the benefit of the Agents and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors 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 the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §7 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders or any Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any LenderAgreement.
Appears in 1 contract
Samples: Credit Agreement (Panera Bread Co)
Concerning Joint and Several Liability of the Guarantors. (a) To the fullest extent permitted by applicable law and subject to §7.1(b), each Each of the Guarantors hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the Applicable Borrowersapplicable Borrower, with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7(Section)7), it being the intention of the parties hereto that (i) the U.S. all such Guaranteed Obligations shall be the joint and several Guaranteed Obligations of the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic BorrowersUS Guarantors; and (ii) the Foreign Canadian Guaranteed Obligations shall be the joint and several Obligations of all GWI and the Canadian Guarantors (other than Huron) without preferences or distribution among them; and (iii) the GRO Guaranteed Obligations shall be the obligation of Huron.
(b) If and to the extent that any the applicable Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, event the applicable co-Guarantors will make such payment with respect to, or perform, such Guaranteed Obligations.
(c) To the fullest extent permitted by applicable law, the The Guaranteed Obligations of each Guarantor under the provisions of this §7 (Section)7 constitute full recourse obligations of such Guarantor enforceable against such Guarantor 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.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any the Administrative Agent or any Lender the Lenders under or in respect of any of the Guaranteed 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 and this Guaranty. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any the Administrative Agent or the Lenders at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any the Administrative Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any the Administrative Agent with respect to the failure by any of the Borrowers or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §7(Section)7, afford grounds for terminating, discharging or relieving any Guarantor, in whole or in part, from any of the Guaranteed Obligations under this §7(Section)7, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 (Section)7 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 (Section)7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration reconstruction or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any the Administrative Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders or any the Administrative Agent.
(e) The U.S. US Guarantors, each Domestic Borrower GWI (solely in its capacity as a Guarantor of the U.S. Canadian Guaranteed Obligations under this §7) and each of (Section)7), the Foreign Canadian Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Canadian Guaranteed Obligations) and Huron (solely in its capacity as Guarantor of the GRO Guaranteed Obligations), shall be liable under the Guaranty under this §7 (Section)7 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7(Section)7, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer and corporate financial assistance, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 (Section)7 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents Administrative Agent and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 (Section)7 to the Lenders or any the Administrative Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents Administrative Agent from any Loan Partythe US Guarantors, GWI, the Canadian Borrower and the Canadian Guarantors, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “"Benefit Amount”"), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in Obligations. If, notwithstanding the following foregoing sentence. If , such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders Lenders, and the Agents Administrative Agent and be paid over to the Applicable Administrative Agent, for the benefit of the Applicable Lenders and the Applicable Administrative Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (Section)7 (other than §7.6(f), which is made for the benefit of the Guarantors) are made for the benefit of the Agents Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors as often as occasion therefor may arise and without requirement on the part of the Agents Administrative Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §7 (Section)7 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders or any the Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 (Section)7 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any the Administrative Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors Guarantor in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any the Administrative Agent or any Lender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Concerning Joint and Several Liability of the Guarantors. (a) To the fullest extent permitted by applicable law and subject to §7.1(b), each of the Guarantors hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the Applicable Borrowers, with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7), it being the intention of the parties hereto that (i) the U.S. Guaranteed Obligations shall be the joint and several Guaranteed Obligations of the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §70, the Domestic BorrowersXXX; and (ii) the Foreign Guaranteed Obligations shall be the joint and several Obligations of all the Foreign Guarantors without preferences or distribution among them.
(b) If and to the extent that any Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, the applicable co-Guarantors will make such payment with respect to, or perform, such Guaranteed Obligations.
(c) To the fullest extent permitted by applicable law, the Guaranteed Obligations of each Guarantor under the provisions of this §7 constitute full recourse obligations of such Guarantor enforceable against such Guarantor 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.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any Agent or any Lender under or in respect of any of the Guaranteed 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 and this Guaranty. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Agent or the Lenders at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any Agent with respect to the failure by any of the Borrowers or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §7, afford grounds for terminating, discharging or relieving any Guarantor, in whole or in part, from any of the Guaranteed Obligations under this §7, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration reconstruction or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders or any Agent.
(e) The U.S. Guarantors, each Domestic Borrower GWI (solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer and corporate financial assistance, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders or any Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents from any Loan Party, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) are made for the benefit of the Agents and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors 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 the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §7 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders or any Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors Guarantor in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Concerning Joint and Several Liability of the Guarantors. (a) To the fullest extent permitted by applicable law and subject to §7.1(b), each Each of the Guarantors hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the Applicable BorrowersBorrower, with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7Section 20), it being the intention of the parties hereto that (i) the U.S. all such Guaranteed Obligations shall be the joint and several Guaranteed Obligations of such Guarantor and the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors Borrower without preferences or distribution distinction among them.
(b) If and to the extent that any the Borrower shall fail to make any payment with respect to any of its Guaranteed Obligations as and when due or to perform any of its Guaranteed Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, event the applicable co-Guarantors Guarantor will make such payment with respect to, or perform, such Guaranteed ObligationsObligation.
(c) To the fullest extent permitted by applicable law, the The Guaranteed Obligations of each Guarantor under the provisions of this §7 Section 20 constitute full recourse obligations of such Guarantor enforceable against such Guarantor 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.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made made, or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any the Agent or any Lender the Banks under or in respect of any of the Guaranteed 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 and this GuarantyAgreement. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any the Agent or the Lenders Banks at any time or times in respect of any Default or Event of Default by any of the Borrowers Borrower or the Guarantors 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 any the Agent or the Lenders Banks in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers Borrower or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders Banks or any the Agent with respect to the failure by any of the Borrowers Borrower or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §7Section 20, afford grounds for terminating, discharging or relieving any Guarantorthe Guarantors, in whole or in part, from any of the Guaranteed Obligations under this §7Section 20, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 Section 20 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 Section 20 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration reconstruction or similar proceeding with respect to the Borrower or any of the Borrowers or the Guarantors or the Lenders Banks or any the Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers Borrower or the Guarantors, the Lenders Banks or any the Agent.
(e) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 Section 20 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7Section 20, voidable under applicable law relating to fraudulent conveyance, conveyance and fraudulent transfer and corporate financial assistancetransfer, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 Section 20 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents Agent and the Lenders Banks that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 Section 20 to the Lenders Banks or any the Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders Banks and the Agents Agent from any Loan Partythe Borrower or the Guarantors, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) Section 20 are made for the benefit of the Agents Agent and the Lenders Banks and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors as often as occasion therefor may arise and without requirement on the part of the Agents Agent or the Lenders Banks first to marshal any of their claims or to exercise any of their rights against the Borrowers Borrower or the Guarantors or to exhaust any remedies available to them against the Borrowers Borrower or the Guarantors 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 §7 Section 20 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks or any the Agent upon the insolvency, bankruptcy or reorganization of the Borrower or any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 Section 20 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 1 contract
Concerning Joint and Several Liability of the Guarantors. (a) To Each Guarantor accepts joint and several liability for the fullest extent permitted by applicable law Obligations hereunder and subject to §7.1(b), each under the other Loan Documents in consideration of the Guarantors financial accommodations to be provided by the Administrative Agent and the Lenders under the Credit Agreement, for the mutual benefit, directly and indirectly, of each Guarantor and in consideration of the undertakings of each other Guarantor to accept joint and several liability for the Obligations.
(b) Each Guarantor, 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 Applicable Borrowers, other Guarantors with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed the Obligations arising under this §7), it being the intention of the parties hereto that (i) the U.S. Obligations shall be the joint and several Guaranteed Obligations of the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic Borrowers; and (ii) the Foreign Obligations shall be the joint and several Obligations of all Guarantors Guaranty without preferences or distribution distinction among them.
(b) If and to the extent that any Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, the applicable co-Guarantors will make such payment with respect to, or perform, such Guaranteed Obligations.
(c) To the fullest extent permitted by applicable law, the Guaranteed Obligations The obligations of each Guarantor under the provisions of this §7 Guaranty constitute full recourse obligations of such each Guarantor enforceable against each such Guarantor to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this the Credit Agreement or any other Loan Documents or any other circumstance whatsoever.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any Agent or any Lender under or in respect of any of the Guaranteed 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 and this Guaranty. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Agent or the Lenders at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any Agent with respect to the failure by any of the Borrowers or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §7, afford grounds for terminating, discharging or relieving any Guarantor, in whole or in part, from any of the Guaranteed Obligations under this §7, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders or any Agent.
(e) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer and corporate financial assistance, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders or any Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents from any Loan Party, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors Guarantor hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 it cash. Any claim which any Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(ge) Each of the Guarantors Guarantor hereby agrees that the payment of any amounts due with respect to the indebtedness Indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as in the manner set forth in the following sentenceIntercompany Subordination Agreement.
(f) It is the intention and agreement of the Guarantors and the Lenders that the obligations of the Guarantors under this Guaranty shall be valid and enforceable against each Guarantor to the maximum extent permitted by applicable law. If such Guarantor shall collect, enforce or receive any amounts in respect provision of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash this Guaranty creating any obligation of the Obligations, such amounts Guarantors in favor of the Lenders shall be collecteddeclared to be invalid or unenforceable in any respect or to any extent, enforced, received it is the stated intention and agreement of the Guarantors and the Lenders that any balance of the obligation created by such Guarantor as trustee for provision and all other obligations of the Guarantors to the Lenders created by other provisions of this Guaranty 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 a Guarantor under this Guaranty 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 such Guarantor’s obligations under this Guaranty, it is the stated intention and agreement of the Guarantors and the Agents and be paid over Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Lenders from such Guarantor.
(g) Each Guarantor makes as to the Applicable Agentitself, for the benefit of the Applicable Lenders Administrative Agent and the Applicable AgentLenders, the representations applicable to be applied to repay (or be held as security for it contained in Article V of the repayment of) the ObligationsCredit Agreement.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) are made for the benefit of the Agents and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors 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 the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §7 shall remain in effect until Until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders or any Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwisecash, the provisions of this §7 Guarantors will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwisenot, and will not prove cause or permit any claim in competition of their Subsidiaries to, commence or join with any Agent other creditor or any Lender in respect creditors of any payment hereunder of their Subsidiaries in commencing any bankruptcy, reorganization or insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lendertheir Subsidiaries.
Appears in 1 contract
Samples: Guaranty (EPL Intermediate, Inc.)
Concerning Joint and Several Liability of the Guarantors. (a) To the fullest extent permitted by applicable law and subject to §7.1(b), each of the Guarantors hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the Applicable Borrowers, with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §7), it being the intention of the parties hereto that (i) the U.S. Guaranteed Obligations shall be the joint and several Guaranteed Obligations of the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the each Domestic BorrowersBorrower; and (ii) the Foreign Guaranteed Obligations shall be the joint and several Obligations of all the Foreign Guarantors without preferences or distribution among them.
(b) If and to the extent that any Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, the applicable co-Guarantors will make such payment with respect to, or perform, such Guaranteed Obligations.
(c) To the fullest extent permitted by applicable law, the Guaranteed Obligations of each Guarantor under the provisions of this §7 constitute full recourse obligations of such Guarantor enforceable against such Guarantor 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.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any Agent or any Lender under or in respect of any of the Guaranteed 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 and this Guaranty. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Agent or the Lenders at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any Agent with respect to the failure by any of the Borrowers or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §7, afford grounds for terminating, discharging or relieving any Guarantor, in whole or in part, from any of the Guaranteed Obligations under this §7, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §7 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders or any Agent.
(e) The U.S. Guarantors, each Domestic Borrower (solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7) and each of the Foreign Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Guaranteed Obligations), shall be liable under the Guaranty under this §7 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §7, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer and corporate financial assistance, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §7 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §7 to the Lenders or any Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents from any Loan Party, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in the following sentence. If such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders and the Agents and be paid over to the Applicable Agent, for the benefit of the Applicable Lenders and the Applicable Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §7 (other than §7.6(f), which is made for the benefit of the Guarantors) are made for the benefit of the Agents and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors 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 the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §7 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders or any Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwise, the provisions of this §7 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors Guarantor in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any Agent or any Lender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Concerning Joint and Several Liability of the Guarantors. (a) To the fullest extent permitted by applicable law and subject to §7.1(b), each Each of the Guarantors hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the Applicable Borrowersapplicable Borrower, with respect to the payment and performance of all of its Guaranteed Obligations (including, without limitation, any Guaranteed Obligations arising under this §Section 7), it being the intention of the parties hereto that (i) the U.S. all such Guaranteed Obligations shall be the joint and several Guaranteed Obligations of the U.S. Guarantors and, solely in its capacity as a Guarantor of the U.S. Guaranteed Obligations under this §7, the Domestic BorrowersUS Guarantors; and (ii) the Foreign Canadian Guaranteed Obligations shall be the joint and several Obligations of all GWI and the Canadian Guarantors without preferences or distribution among them.
(b) If and to the extent that any the applicable Borrower shall fail to make any payment with respect to any of its Obligations as and when due or to perform any of its Obligations in accordance with the terms thereof, then in each such event, to the fullest extent permitted by applicable law, event the applicable co-Guarantors will make such payment with respect to, or perform, such Guaranteed Obligations.
(c) To the fullest extent permitted by applicable law, the The Guaranteed Obligations of each Guarantor under the provisions of this §Section 7 constitute full recourse obligations of such Guarantor enforceable against such Guarantor 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.
(d) Except as otherwise expressly provided in this Credit Agreement, each of the Guarantors hereby waives notice of acceptance of its joint and several liability, notice of any Loans made or Letters of Credit issued under this Credit Agreement, notice of any action at any time taken or omitted by any the Administrative Agent or any Lender the Lenders under or in respect of any of the Guaranteed 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 and this Guaranty. Each of the Guarantors hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Guaranteed Obligations, the acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any the Administrative Agent or the Lenders at any time or times in respect of any Default or Event of Default by any of the Borrowers or the Guarantors in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by any the Administrative Agent or the Lenders in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers or any other Guarantor. Without limiting the generality of the foregoing, each of the Guarantors assents to any other action or delay in acting or failure to act on the part of the Lenders or any the Administrative Agent with respect to the failure by any of the Borrowers or any other Guarantor to comply with its respective Obligations or Guaranteed 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 §Section 7, afford grounds for terminating, discharging or relieving any Guarantor, in whole or in part, from any of the Guaranteed Obligations under this §Section 7, it being the intention of the Guarantors that, so long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of the Guarantors under this §Section 7 shall not be discharged except by performance and then only to the extent of such performance. The Guaranteed Obligations of each of the Guarantors under this §Section 7 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction, receivership, administration reconstruction or similar proceeding with respect to any of the Borrowers or the Guarantors or the Lenders or any the Administrative Agent. The joint and several liability of each of the Guarantors hereunder shall continue in full force and effect notwithstanding any absorption, merger, sale or contribution of all assets and liabilities of a company (“universalité/algemeenheid”) or of a branch of activities or other consolidation, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of the Borrowers or the Guarantors, the Lenders or any the Administrative Agent.
(e) The U.S. US Guarantors, each Domestic Borrower GWI (solely in its capacity as a Guarantor of the U.S. Canadian Guaranteed Obligations under this §Section 7) and each of the Foreign Canadian Guarantors and each of the Foreign Borrowers (solely in their capacity as Guarantors of the Foreign Canadian Guaranteed Obligations), shall be liable under the Guaranty under this §Section 7 only for the maximum amount of such liabilities that can be incurred under applicable law without rendering this Credit Agreement, as it relates to the guaranty under this §Section 7, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer and corporate financial assistance, and not for any greater amount. Accordingly, if any obligation under any provision of the guaranty under this §Section 7 shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of the Guarantors, the Agents Administrative Agent and the Lenders that any balance of the obligation created by such provision and all other obligations of the Guarantors under this §Section 7 to the Lenders or any the Administrative Agent shall remain valid and enforceable, and that all sums not in excess of those permitted under applicable law shall remain fully collectible by the Lenders and the Agents Administrative Agent from any Loan Partythe US Guarantors, GWI, the Canadian Borrower and the Canadian Guarantors, as the case may be.
(f) To the extent any U.S. Guarantor or any Foreign Guarantor, as the case may be, makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “"Benefit Amount”"), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from the Applicable Borrowers and each other applicable Guarantor such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other applicable Guarantor to the total Benefit Amount received by all applicable Guarantors, and the right to such recovery shall be deemed to be an asset and property of such Guarantor so funding; provided, that each of the Guarantors hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other applicable Guarantors 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 any 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 Guarantor may have against any other applicable Guarantor with respect to any payments to the Lenders or any 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 in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, administration, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Guarantor, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other applicable Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Guarantor to any other Guarantor or any Borrower is hereby subordinated to the prior payment in full in cash of the Obligations as set forth in Obligations. If, notwithstanding the following foregoing sentence. If , such Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Guarantor as trustee for the Lenders Lenders, and the Agents Administrative Agent and be paid over to the Applicable Administrative Agent, for the benefit of the Applicable Lenders and the Applicable Administrative Agent, to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this §Section 7 (other than §7.6(f), which is made for the benefit of the Guarantors) are made for the benefit of the Agents Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against the Guarantors as often as occasion therefor may arise and without requirement on the part of the Agents Administrative Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against the Borrowers or the Guarantors or to exhaust any remedies available to them against the Borrowers or the Guarantors 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 §Section 7 shall remain in effect until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied and the Commitments have expired and all outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Guaranteed Obligations, is rescinded or must otherwise be restored or returned by the Lenders or any the Administrative Agent upon the insolvency, bankruptcy or reorganization of any of the Borrowers or the Guarantors, or otherwise, the provisions of this §Section 7 will forthwith be reinstated in effect, as though such payment had not been made. Until the final payment and performance in full in cash of all of the Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any rights such Guarantor may have against any of the Borrowers or any other Guarantor arising as a result of payment by such Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with any the Administrative Agent or any Lender in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; such Guarantor will not claim any setoff, recoupment or counterclaim against the Borrowers or any of the other Guarantors Guarantor in respect of any liability of the Borrowers to such Guarantor; and such Guarantor waives any benefit of and any right to participate in any collateral security which may be held by any the Administrative Agent or any Lender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
