Joint and Several Liabilities of the Borrowers. (a) U.S. Facility. (i) Each U.S. Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lender Group under this Agreement, for the mutual benefit, directly and indirectly, of each U.S. Borrower and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the U.S. Finance Obligations. (ii) Each U.S. Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety and guarantor but also as a co-debtor, joint and several liability with the other U.S. Borrowers, with respect to the payment and performance of all of the U.S. Finance Obligations (including any U.S. Finance Obligations arising under this Section 2.15(a)), it being the intention of the parties hereto that all the U.S. Finance Obligations shall be the joint and several obligations of each the U.S. Borrower without preferences or distinction among them. (iii) If and to the extent that any U.S. Borrower shall fail to make any payment with respect to any of the U.S. Finance Obligations as and when due or to perform any of the U.S. Finance Obligations in accordance with the terms thereof, then in each such event the other U.S. Borrowers will make such payment with respect to, or perform, such U.S. Finance Obligation until such time as all of the U.S. Finance Obligations are paid in full. (iv) The obligations of each U.S. Borrower under the provisions of this Section 2.15(a) constitute the absolute and unconditional, full recourse obligations of each Borrower enforceable against each U.S. Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement (other than this Section 2.15(a)(iv)) or any other circumstances whatsoever. (v) Except as otherwise expressly provided in this Agreement, each U.S. Borrower hereby waives notice of acceptance of its joint and several liability, notice of extensions of credit under U.S. Advances or U.S. Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the U.S. Revolving Lenders under or in respect of any of the U.S. Finance Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each U.S. Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the U.S. Finance Obligations, the acceptance of any payment of any of the U.S. Finance Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the U.S. Revolving Lenders at any time or times in respect of any default by any U.S. Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Administrative Agent or the U.S. Revolving Lenders in respect of any of the U.S. Finance 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 U.S. Finance Obligations or the addition, substitution or release, in whole or in part, of any U.S. Borrower. Without limiting the generality of the foregoing, each U.S. Borrower assents to any other action or delay in acting or failure to act on the part of any the Administrative Agent or U.S. Revolving Lender with respect to the failure by any U.S. Borrower to comply with any of its respective obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.15(a) afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its obligations under this Section 2.15(a), it being the intention of each U.S. Borrower that, so long as any of the U.S. Finance Obligations hereunder remain unsatisfied, the obligations of each U.S. Borrower under this Section 2.15(a) shall not be discharged except by performance and then only to the extent of such performance. The obligations of each U.S. Borrower under this Section 2.15(a) shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other U.S. Borrower, the Administrative Agent or any U.S. Revolving Lender. (vi) Each U.S. Borrower represents and warrants to the Administrative Agent and the U.S. Revolving Lenders that such U.S. Borrower is currently informed of the financial condition of the U.S. Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the U.S. Finance Obligations. Each U.S. Borrower further represents and warrants to the Administrative Agent and the U.S. Revolving Lenders that such U.S. Borrower has read and understands the terms and conditions of the Loan Documents. Each U.S. Borrower hereby covenants that such U.S. Borrower will continue to keep informed of the U.S. Borrowers’ financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the U.S. Finance Obligations. (vii) The provisions of this Section 2.15(a) are made for the benefit of the Administrative Agent, each member of the Lender Group, each Bank Product Provider, and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the U.S. Borrowers as often as occasion therefor may arise and without requirement on the part of the Administrative Agent, any member of the Lender Group, any Bank Product Provider, or any of their successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any U.S. Borrower or to exhaust any remedies available to it or them against any U.S. Borrower or to resort to any other source or means of obtaining payment of any of the U.S. Finance Obligations hereunder or to elect any other remedy. The provisions of this Section 2.15(a) shall remain in effect until all of the U.S. Finance Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the U.S. Finance Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or any U.S. Revolving Lender upon the insolvency, bankruptcy or reorganization of any U.S. Borrower, or otherwise, the provisions of this Section 2.15(a) will forthwith be reinstated in effect, as though such payment had not been made.
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Samples: Amendment No. 3 (JELD-WEN Holding, Inc.), Amendment No. 1 (JELD-WEN Holding, Inc.), Revolving Credit Agreement (JELD-WEN Holding, Inc.)
Joint and Several Liabilities of the Borrowers. (a) U.S. Facility.
(i) Each U.S. Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lender Group under this Agreement, for the mutual benefit, directly and indirectly, of each U.S. Borrower and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the U.S. Finance Obligations.
(ii) Each U.S. Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety and guarantor but also as a co-debtor, joint and several liability with the other U.S. Borrowers, with respect to the payment and performance of all of the U.S. Finance Obligations (including any U.S. Finance Obligations arising under this Section 2.15(a)), it being the intention of the parties hereto that all the U.S. Finance Obligations shall be the joint and several obligations of each the U.S. Borrower without preferences or distinction among them.
(iii) If and to the extent that any U.S. Borrower shall fail to make any payment with respect to any of the U.S. Finance Obligations as and when due or to perform any of the U.S. Finance Obligations in accordance with the terms thereof, then in each such event the other U.S. Borrowers will make such payment with respect to, or perform, such U.S. Finance Obligation until such time as all of the U.S. Finance Obligations are paid in full.
(iv) The obligations of each U.S. Borrower under the provisions of this Section 2.15(a) constitute the absolute and unconditional, full recourse obligations of each Borrower enforceable against each U.S. Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement (other than this Section 2.15(a)(iv)) or any other circumstances whatsoever.
(v) Except as otherwise expressly provided in this Agreement, each U.S. Borrower hereby waives notice of acceptance of its joint and several liability, notice of extensions of credit under U.S. Advances or U.S. Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the U.S. Revolving Lenders under or in respect of any of the U.S. Finance Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each U.S. Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the U.S. Finance Obligations, the acceptance of any payment of any of the U.S. Finance Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the U.S. Revolving Lenders at any time or times in respect of any default by any U.S. Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Administrative Agent or the U.S. Revolving Lenders in respect of any of the U.S. Finance 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 U.S. Finance Obligations or the addition, substitution or release, in whole or in part, of any U.S. Borrower. Without limiting the generality of the foregoing, each U.S. Borrower assents to any other action or delay in acting or failure to act on the part of any the Administrative Agent or U.S. Revolving Lender with respect to the failure by any U.S. Borrower to comply with any of its respective obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.15(a) afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its obligations under this Section 2.15(a), it being the intention of each U.S. Borrower that, so long as any of the U.S. Finance Obligations hereunder remain unsatisfied, the obligations of each U.S. Borrower under this Section 2.15(a) shall not be discharged except by performance and then only to the extent of such performance. The obligations of each U.S. Borrower under this Section 2.15(a) shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other U.S. Borrower, the Administrative Agent or any U.S. Revolving Lender.
(vi) Each U.S. Borrower represents and warrants to the Administrative Agent and the U.S. Revolving Lenders that such U.S. Borrower is currently informed of the financial condition of the U.S. Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the U.S. Finance Obligations. Each U.S. Borrower further represents and warrants to the Administrative Agent and the U.S. Revolving Lenders that such U.S. Borrower has read and understands the terms and conditions of the Loan Documents. Each U.S. Borrower hereby covenants that such U.S. Borrower will continue to keep informed of the U.S. Borrowers’ financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the U.S. Finance Obligations.
(vii) The provisions of this Section 2.15(a) are made for the benefit of the Administrative Agent, each member of the Lender Group, each Bank Product Provider, and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the U.S. Borrowers as often as occasion therefor may arise and without requirement on the part of the Administrative Agent, any member of the Lender Group, any Bank Product Provider, or any of their successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any U.S. Borrower or to exhaust any remedies available to it or them against any U.S. Borrower or to resort to any other source or means of obtaining payment of any of the U.S. Finance Obligations hereunder or to elect any other remedy. The provisions of this Section 2.15(a) shall remain in effect until all of the U.S. Finance Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the U.S. Finance Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or any U.S. Revolving Lender upon the insolvency, bankruptcy or reorganization of any U.S. Borrower, or otherwise, the provisions of this Section 2.15(a) will forthwith be reinstated in effect, as though such payment had not been made.
(viii) Each U.S. Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent or the U.S. Revolving Lenders with respect to any of the U.S. Finance Obligations or any collateral security therefor until such time as all of the Finance Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to any the Administrative Agent or any member of the Lender Group hereunder or under any of the Bank Product Agreements 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 U.S. Finance Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any U.S. Borrower, its debts or its assets, whether voluntary or involuntary, all such U.S. Finance 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 U.S. Borrower therefor.
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