Joint and Several Liability of Companies. (a) Notwithstanding anything in this Financing Agreement or any other Loan Document to the contrary, each of the Companies hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent, the Lenders and the Issuing Bank under this Financing Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Companies and other L/C Eligible Account Parties and in consideration of the undertakings of the other Companies to accept joint and several liability for the Loans and the other Obligations hereunder, as well as the undertaking of Trim Trends for its own obligations relating to Letters of Credit issued for its account. Each of the Companies, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Companies, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Paragraph 11.2), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Companies without preferences or distinction among them. If and to the extent that any of the Companies shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Companies will make such payment with respect to, or perform, such Obligation. (b) Subject to the terms and conditions hereof, the Obligations of each of the Companies under the provisions of this Paragraph 11.2 constitute the absolute and unconditional, full recourse Obligations of each of the Companies enforceable against each Company to the full extent of its properties and assets, irrespective of all of the following: (i) any lack of validity or enforceability, any irregularity, default or omission in any relevant documentation, including any Loan Document, or of the Obligations, or any delay, failure or omission to enforce or agreement not to enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise of any right with respect to the foregoing (including, in each case, without limitation, as a result of the insolvency, bankruptcy or reorganization of the Issuing Bank, any Agent, any Lender, any Company or any other Person); (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Loan Documents; (iii) any exchange or release of, or non-perfection of any lien on or in, any Collateral, any release or amendment or waiver of or consent to any departure from any guaranty or security, for all or any of the Obligations or any release of any other Obligor from all or any part of its obligations under this Financing Agreement or any of the terms of any other Loan Document; (iv) any claim, set-off, counterclaim, defense or other rights, including any as to marshalling of any security or guaranties that any Obligor may have at any time and from time to time against the Issuing Bank, any Agent, any Lender, or any other Person, whether in connection with the transactions contemplated in the Loan Documents or any other transaction; or (v) any other circumstances which might otherwise constitute a defense based on suretyship or otherwise available to, or a discharge of, any Company in respect of (A) the Obligations of any Company, (B) the release of or waiver of any rights against any other Obligor and the settlement, compromise or release of any Obligations of any of them or (C) the failure by the Administrative Agent, the Issuing Bank or any Lender to attempt, or delay by it in attempting, to collect any Obligations from any other Company or Guaranty Obligations from any Guarantor or to realize upon any Collateral; and the Issuing Bank, the Agents and the Lenders may deal with any of the Companies as they see fit without prejudice or effect on this Financing Agreement or the security for the Obligations; and each Company hereby irrevocably waives all defenses that it might otherwise have based on any of the matters identified above in this Paragraph 11.2 or based on any other circumstances other than the full, final and indefeasible payment of all Obligations; provided that the foregoing provisions of this sentence relating to any Company and an Obligation shall not be understood to constitute a waiver of any defense based on the full and final release of all responsibility of such Company for such Obligation given in writing by the Agents, the Issuing Bank and the Lenders. (c) The provisions of this Paragraph 11.2 are made for the benefit of the Agents, the Issuing Bank and the Lenders and their successors and assigns, and may be enforced by it or them from time to time against any or all of the Companies as often as occasion therefor may arise and without requirement on the part of the Agents, the Issuing Bank and/or the Lenders or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any other Company or to exhaust any remedies available to it or them against any other Company 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 Paragraph 11.2 shall remain in effect until all of the Obligations have been fully, finally and indefeasibly paid in cash.
Appears in 1 contract
Joint and Several Liability of Companies. (a) Notwithstanding anything in this Financing Agreement or any other Loan Document to the contrary, each of the Companies hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Administrative Agent, the Lenders and the Issuing Bank Lender under this Financing Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Companies and other L/C Eligible Account Parties and in consideration of the undertakings of the other Companies to accept joint and several liability for the Loans Term Loan and the other Obligations hereunder, as well as the undertaking of Trim Trends for its own obligations relating to Letters of Credit issued for its account. Each of the Companies, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Companies, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Paragraph 11.23.6), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Companies without preferences or distinction among them. If and to the extent that any of the Companies shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Companies will make such payment with respect to, or perform, such Obligation.
(b) Subject to the terms and conditions hereof, the Obligations of each of the Companies under the provisions of this Paragraph 11.2 3.6 constitute the absolute and unconditional, full recourse Obligations of each of the Companies enforceable against each Company to the full extent of its properties and assets, irrespective of all of the following:
(i) any lack of validity or enforceability, any irregularity, default or omission in any relevant documentation, including any Loan Document, or of the Obligations, or any delay, failure or omission to enforce or agreement not to enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise of any right with respect to the foregoing (including, in each case, without limitation, as a result of the insolvency, bankruptcy or reorganization of the Issuing Bank, any Agent, any Lender, any Company Lender or any other Person);
(ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Loan Documents;
(iii) any exchange or release of, or non-perfection of any lien on or in, any Collateral, any release or amendment or waiver of or consent to any departure from any guaranty or security, for all or any of the Obligations or any release of any other Obligor from all or any part of its obligations under this Financing Agreement or any of the terms of any other Loan Document;
(iv) any claim, set-off, counterclaim, defense or other rights, including any as to marshalling of any security or guaranties that any Obligor may have at any time and from time to time against the Issuing Bank, any Agent, any Lender, Lender or any other Person, whether in connection with the transactions contemplated in the Loan Documents or any other transaction; or
(v) any other circumstances which might otherwise constitute a defense based on suretyship or otherwise available to, or a discharge of, any Company in respect of (A) the Obligations of any Company, (B) the release of or waiver of any rights against any other Obligor and the settlement, compromise or release of any Obligations of any of them or (C) the failure by the Administrative Agent, the Issuing Bank or any Lender to attempt, or delay by it in attempting, to collect any Obligations from any other Company or Guaranty Obligations from any Guarantor or to realize upon any Collateral; and the Issuing Bank, the Agents and the Lenders Lender may deal with any of the Companies Obligors as they see it sees fit without prejudice or effect on this Financing Agreement or the security for the Obligations; and each Company hereby irrevocably waives all defenses that it might otherwise have based on any of the matters identified above in this Paragraph 11.2 3.6 or based on any other circumstances other than the full, final and indefeasible payment of all Obligations; provided that the foregoing provisions of this sentence relating to any Company and an any Obligation shall not be understood to constitute a waiver of any defense based on the full and final release of all responsibility of such Company for such Obligation given in writing by the Agents, the Issuing Bank and the LendersLender.
(c) The provisions of this Paragraph 11.2 3.6 are made for the benefit of the Agents, the Issuing Bank Lender and the Lenders and their its successors and assigns, and may be enforced by it or them from time to time against any or all of the Companies as often as occasion therefor may arise and without requirement on the part of the Agents, the Issuing Bank and/or the Lenders Lender or such successors or assigns first to marshal xxxxxxxx any of its or their claims or to exercise any of its or their rights against any other Company or to exhaust any remedies available to it or them against any other Company 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 Paragraph 11.2 3.6 shall remain in effect until all of the Obligations shall have been fully, finally and indefeasibly paid in full or otherwise fully satisfied.
(d) Each of the Companies hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Companies with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Lender with respect to any of the Obligations or any Collateral until such time as all of the Obligations have been paid in full in cash. Any claim which any Company may have against the other Company with respect to any payments to the Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation, as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Company, 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 the other Companies therefor.
Appears in 1 contract
Joint and Several Liability of Companies. (a) Notwithstanding anything in this Financing Agreement or any other Loan Document to the contrary, each of the Companies hereby accepts Each Company is accepting joint and several liability hereunder and under the other Loan Credit Documents in consideration of the financial accommodations to be provided by the Administrative Agent, the Lenders and the Issuing Bank under this Financing Agreement and the other Loan DocumentsAgreement, for the mutual benefit, directly and indirectly, of each of the Companies and other L/C Eligible Account Parties Company and in consideration of the undertakings of the other Companies to accept joint and several liability for the Loans and the other Obligations hereunder, as well as the undertaking of Trim Trends for its own obligations relating to Letters of Credit issued for its account. Obligations.
(b) Each of the CompaniesCompany, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Companies, with respect to the payment and performance of all of the Obligations (including, without limitation, including any Obligations arising under this Paragraph 11.2Section 2.22), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Companies Company without preferences or distinction among them. .
(c) If and to the extent that any of the Companies Company shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Companies will make such payment with respect to, or perform, such ObligationObligation until such time as all of the Obligations are paid in full.
(bd) Subject to the terms and conditions hereof, the The Obligations of each of the Companies Company under the provisions of this Paragraph 11.2 Section 2.22 constitute the absolute and unconditional, full recourse Obligations of each of the Companies Company enforceable against each Company to the full extent of its properties and assets, irrespective of all the validity, regularity or enforceability of the following:provisions of this Agreement (other than this Section 2.22(d)) or any other circumstances whatsoever.
(ie) Except as otherwise expressly provided in this Agreement, each Company hereby waives notice of acceptance of its joint and several liability, notice of any lack Term Loan under or pursuant to this Agreement, notice of validity or enforceabilitythe occurrence of any Default, any irregularity, default or omission in any relevant documentation, including any Loan DocumentEvent of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by any Agent or Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Company hereby assents to, and waives notice of, any delay, failure extension or omission to enforce or agreement not to enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, postponement of the exercise time for the payment of any right with respect to the foregoing (including, in each case, without limitation, as a result of the insolvency, bankruptcy or reorganization of the Issuing Bank, any Agent, any Lender, any Company or any other Person);
(ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Loan Documents;
(iii) any exchange or release ofObligations, or non-perfection the acceptance of any lien on or inpayment of any of the Obligations, the acceptance of any partial payment thereon, any Collateralwaiver, consent or other action or acquiescence by any Agent or Lenders at any time or times in respect of any default by any Company in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any release and all other indulgences whatsoever by any Agent or amendment Lenders in respect of any of the Obligations, and the taking, addition, substitution or waiver release, in whole or in part, at any time or times, of or consent to any departure from any guaranty or security, security for all or any of the Obligations or any release the addition, substitution or release, in whole or in part, of any Company. Without limiting the generality of the foregoing, each Company assents to any other Obligor from all action or any delay in acting or failure to act on the part of any Agent or Lender with respect to the failure by any Company to comply with any of its obligations respective Obligations, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.22 afford grounds for terminating, discharging or relieving any Company, in whole or in part, from any of its Obligations under this Financing Agreement or Section 2.22, it being the intention of each Company that, so long as any of the terms of any other Loan Document;
(iv) any claimObligations hereunder remain unsatisfied, set-off, counterclaim, defense or other rights, including any as to marshalling of any security or guaranties that any Obligor may have at any time and from time to time against the Issuing Bank, any Agent, any Lender, or any other Person, whether in connection with the transactions contemplated in the Loan Documents or any other transaction; or
(v) any other circumstances which might otherwise constitute a defense based on suretyship or otherwise available to, or a discharge of, any Company in respect of (A) the Obligations of any Company, (B) each Company under this Section 2.22 shall not be discharged except by performance and then only to the release extent of or waiver of any rights against any other Obligor and the settlement, compromise or release of any such performance. The Obligations of each Company under this Section 2.22 shall not be diminished or rendered unenforceable by any of them winding up, reorganization, arrangement, liquidation, reconstruction or (C) the failure by the Administrative Agent, the Issuing Bank or any Lender similar proceeding with respect to attempt, or delay by it in attempting, to collect any Obligations from any other Company or Guaranty Obligations from any Guarantor Agent or to realize upon any Collateral; and the Issuing Bank, the Agents and the Lenders may deal with any of the Companies as they see fit without prejudice or effect on this Financing Agreement or the security for the Obligations; and each Company hereby irrevocably waives all defenses that it might otherwise have based on any of the matters identified above in this Paragraph 11.2 or based on any other circumstances other than the full, final and indefeasible payment of all Obligations; provided that the foregoing provisions of this sentence relating to any Company and an Obligation shall not be understood to constitute a waiver of any defense based on the full and final release of all responsibility of such Company for such Obligation given in writing by the Agents, the Issuing Bank and the LendersLender.
(cf) Each Company represents and warrants to Agents and Lenders that such Company is currently informed of the financial condition of Companies and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Company further represents and warrants to Agents and Lenders that such Company has read and understands the terms and conditions of the Credit Documents. Each Company hereby covenants that such Company will continue to keep informed of Companies’ financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.
(g) The provisions of this Paragraph 11.2 Section 2.22 are made for the benefit of the Agentseach Agent, the Issuing Bank and the Lenders each Lender and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Companies as often as occasion therefor may arise and without requirement on the part of the Agentsany Agent, the Issuing Bank and/or the Lenders any Lender, or such 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 other Company or to exhaust any remedies available to it or them against any other Company 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 Paragraph 11.2 Section 2.22 shall remain in effect until all of the Obligations shall have been fully, finally and indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Company, or otherwise, the provisions of this Section 2.22 will forthwith be reinstated in effect, as though such payment had not been made.
(h) Each Company hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Company with respect to any liability incurred by it hereunder or under any of the other Credit Documents, any payments made by it to Agents or Lenders with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any Company may have against any other Company with respect to any payments to any Agent or any Lender hereunder 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, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Company, 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 Company therefor.
(i) Each Company hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Company will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Company owing to such Company until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Company shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Company as trustee for Administrative Agent, and such Company shall deliver any such amounts to Administrative Agent for application to the Obligations in accordance with Section 2.15(h).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Newtek Business Services Corp.)
Joint and Several Liability of Companies. (a) Notwithstanding anything in this Financing Agreement or any other Loan Document to the contrary, each of the Companies hereby accepts Each Company is accepting joint and several liability hereunder and under the other Loan Credit Documents in consideration of the financial accommodations to be provided by the Administrative Agent, the Lenders and the Issuing Bank under this Financing Agreement and the other Loan DocumentsAgreement, for the mutual benefit, directly and indirectly, of each of the Companies and other L/C Eligible Account Parties Company and in consideration of the undertakings of the other Companies to accept joint and several liability for the Loans and the other Obligations hereunder, as well as the undertaking of Trim Trends for its own obligations relating to Letters of Credit issued for its account. Obligations.
(b) Each of the CompaniesCompany, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Companies, with respect to the payment and performance of all of the Obligations (including, without limitation, including any Obligations arising under this Paragraph 11.2Section 2.22), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Companies Company without preferences or distinction among them. .
(c) If and to the extent that any of the Companies Company shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Companies will make such payment with respect to, or perform, such ObligationObligation until such time as all of the Obligations are paid in full.
(bd) Subject to the terms and conditions hereof, the The Obligations of each of the Companies Company under the provisions of this Paragraph 11.2 Section 2.22 constitute the absolute and unconditional, full recourse Obligations of each of the Companies Company enforceable against each Company to the full extent of its properties and assets, irrespective of all the validity, regularity or enforceability of the following:provisions of this Agreement (other than this Section 2.22(d)) or any other circumstances whatsoever.
(ie) Except as otherwise expressly provided in this Agreement, each Company hereby waives notice of acceptance of its joint and several liability, notice of any lack Term Loan under or pursuant to this Agreement, notice of validity or enforceabilitythe occurrence of any Default, any irregularity, default or omission in any relevant documentation, including any Loan DocumentEvent of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by any Agent or Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Company hereby assents to, and waives notice of, any delay, failure extension or omission to enforce or agreement not to enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, postponement of the exercise time for the payment of any right with respect to the foregoing (including, in each case, without limitation, as a result of the insolvency, bankruptcy or reorganization of the Issuing Bank, any Agent, any Lender, any Company or any other Person);
(ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Loan Documents;
(iii) any exchange or release ofObligations, or non-perfection the acceptance of any lien on or inpayment of any of the Obligations, the acceptance of any partial payment thereon, any Collateralwaiver, consent or other action or acquiescence by any Agent or Lenders at any time or times in respect of any default by any Company in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any release and all other indulgences whatsoever by any Agent or amendment Lenders in respect of any of the Obligations, and the taking, addition, substitution or waiver release, in whole or in part, at any time or times, of or consent to any departure from any guaranty or security, security for all or any of the Obligations or any release the addition, substitution or release, in whole or in part, of any Company. Without limiting the generality of the foregoing, each Company assents to any other Obligor from all action or any delay in acting or failure to act on the part of any Agent or Lender with respect to the failure by any Company to comply with any of its obligations respective Obligations, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.22 afford grounds for terminating, discharging or relieving any Company, in whole or in part, from any of its Obligations under this Financing Agreement or Section 2.22, it being the intention of each Company that, so long as any of the terms of any other Loan Document;
(iv) any claimObligations hereunder remain unsatisfied, set-off, counterclaim, defense or other rights, including any as to marshalling of any security or guaranties that any Obligor may have at any time and from time to time against the Issuing Bank, any Agent, any Lender, or any other Person, whether in connection with the transactions contemplated in the Loan Documents or any other transaction; or
(v) any other circumstances which might otherwise constitute a defense based on suretyship or otherwise available to, or a discharge of, any Company in respect of (A) the Obligations of any Company, (B) each Company under this Section 2.22 shall not be discharged except by performance and then only to the release extent of or waiver of any rights against any other Obligor and the settlement, compromise or release of any such performance. The Obligations of each Company under this Section 2.22 shall not be diminished or rendered unenforceable by any of them winding up, reorganization, arrangement, liquidation, reconstruction or (C) the failure by the Administrative Agent, the Issuing Bank or any Lender similar proceeding with respect to attempt, or delay by it in attempting, to collect any Obligations from any other Company or Guaranty Obligations from any Guarantor Agent or to realize upon any Collateral; and the Issuing Bank, the Agents and the Lenders may deal with any of the Companies as they see fit without prejudice or effect on this Financing Agreement or the security for the Obligations; and each Company hereby irrevocably waives all defenses that it might otherwise have based on any of the matters identified above in this Paragraph 11.2 or based on any other circumstances other than the full, final and indefeasible payment of all Obligations; provided that the foregoing provisions of this sentence relating to any Company and an Obligation shall not be understood to constitute a waiver of any defense based on the full and final release of all responsibility of such Company for such Obligation given in writing by the Agents, the Issuing Bank and the LendersLender.
(cf) Each Company represents and warrants to Agents and Lenders that such Company is currently informed of the financial condition of Companies and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Company further represents and warrants to Agents and Lenders that such Company has read and understands the terms and conditions of the Credit Documents. Each Company hereby covenants that such Company will continue to keep informed of Companies'
(g) The provisions of this Paragraph 11.2 Section 2.22 are made for the benefit of the Agentseach Agent, the Issuing Bank and the Lenders each Lender and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Companies as often as occasion therefor may arise and without requirement on the part of the Agentsany Agent, the Issuing Bank and/or the Lenders any Lender, or such 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 other Company or to exhaust any remedies available to it or them against any other Company 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 Paragraph 11.2 Section 2.22 shall remain in effect until all of the Obligations shall have been fully, finally and indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Company, or otherwise, the provisions of this Section 2.22 will forthwith be reinstated in effect, as though such payment had not been made.
(h) Each Company hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Company with respect to any liability incurred by it hereunder or under any of the other Credit Documents, any payments made by it to Agents or Lenders with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any Company may have against any other Company with respect to any payments to any Agent or any Lender hereunder 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, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Company, 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 Company therefor.
(i) Each Company hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Company will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Company owing to such Company until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Company shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Company as trustee for Administrative Agent, and such Company shall deliver any such amounts to Administrative Agent for application to the Obligations in accordance with Section 2.15(h). 2.23.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Newtek Business Services Corp.)
Joint and Several Liability of Companies. (a) Notwithstanding anything in this Financing Agreement or any other Loan Document to the contrary, each of the Companies hereby accepts Each Company is accepting joint and several liability hereunder and under the other Loan Documents Notes in consideration of the financial accommodations accommodation to be provided by the Administrative Agent, Purchasers of the Lenders and the Issuing Bank under this Financing Agreement and the other Loan DocumentsNotes, for the mutual benefit, directly and indirectly, of each of the Companies and other L/C Eligible Account Parties Company and in consideration of the undertakings of the other Companies each Company to accept joint and several liability for the Loans and the obligations of each other Obligations hereunder, as well as the undertaking of Trim Trends for its own obligations relating to Letters of Credit issued for its accountCompany. Each of the Companies, Company jointly and severally, hereby severally irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtorobligor, joint and several liability with the other Companies, Companies with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Paragraph 11.2)Notes, it being the intention of the parties hereto that all of the Obligations Notes shall be the joint and several obligations of each and all of the Companies without preferences or distinction among them. If and to the extent that any of the Companies Company shall fail to make any payment with respect to all or any portion of the Obligations Notes as and when due or to perform any of the Obligations other obligation hereunder or under any other Note Document in accordance with the terms hereof or thereof, then in each such event event, the other Companies will make such payment with respect to, or perform, such Obligation.
(b) Subject to the terms and conditions hereof, the Obligations obligation. The obligations of each of the Companies Company under the provisions of this Paragraph 11.2 Note Documents constitute the absolute and unconditional, full recourse Obligations obligations of each of the Companies such Company, enforceable against each Company it to the full extent of its properties and assets, irrespective of all the validity, regularity or enforceability of the following:
(i) this Agreement or any lack of validity other Note Document or enforceability, any irregularity, default or omission other circumstances whatsoever. Except as otherwise expressly provided in any relevant documentationNote Document, including each Company hereby waives notice of acceptance of its joint and several liability, notice of any Loan Documentissuance of any Note under this Agreement, notice of occurrence of any Default or Event of Default, or of the Obligations, any demand for any payment under this Agreement or any delayother Note Document, failure notice of any action at any time taken or omission to enforce omitted by the Collateral Agent or agreement not to enforceany holder of any Note under or in respect of any of the obligations of the Companies under the Note Documents, any requirement of diligence and, generally, all demands, notice and other formalities of every kind in connection with this Agreement or any other Note Document. Each Company hereby assents to, and waives notice of, any extension or postponement of the time for the payment of the Notes, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Collateral Agent or any holder of any Note at any time or times in respect of any default by any Company in the performance or satisfaction of any term, covenant, condition or provision of this Agreement or any other Note Document, any and all other indulgences whatsoever by the Collateral Agent or any holder of any Note in respect of any of the obligations of the Companies under the Note Documents, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the obligations of the Companies under the Note Documents or in part, at any time or times, of any security for any of the obligations of the Companies under the Note Documents or the stay addition, substitution or enjoiningrelease, by order of court, by operation of law in whole or otherwisein part, of any Company. Without limiting the exercise generality of the foregoing, each Company assents to any other action or delay in acting or failure to act on the part of the Collateral Agent or any holder of any right with respect to the foregoing (Note, including, in each case, without limitation, as a result any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for the provisions of the insolvencythis Section 22, bankruptcy afford grounds for terminating, discharging or reorganization of the Issuing Bankrelieving such Company, any Agent, any Lender, any Company or any other Person);
(ii) any change in the time, manner or place of payment of, whole or in any other term in respect ofpart, all or any of the Loan Documents;
(iii) any exchange or release of, or non-perfection of any lien on or in, any Collateral, any release or amendment or waiver of or consent to any departure from any guaranty or security, for all or any of the Obligations or any release of any other Obligor from all or any part of its obligations under this Financing Agreement or any other Note Document, it being the intention of each Company that, so long as any portion of the terms Notes remain unsatisfied, the obligations of such Company under this Agreement and the other Note Documents shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Company under this Agreement and the other Note Documents shall not be diminished or rendered unenforceable by any other Loan Document;
(iv) winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any claimCompany. The joint and several liability of the Companies hereunder shall continue in full force and effect notwithstanding any absorption, set-offmerger, counterclaim, defense or other rights, including any as to marshalling of any security or guaranties that any Obligor may have at any time and from time to time against the Issuing Bank, any Agent, any Lender, amalgamation or any other Person, whether in connection with the transactions contemplated change whatsoever in the Loan Documents name, membership, constitution or any other transaction; or
(v) any other circumstances which might otherwise constitute a defense based on suretyship or otherwise available to, or a discharge of, any Company in respect place of (A) the Obligations formation of any Company, (B) the release of or waiver of any rights against any other Obligor and the settlement, compromise or release of any Obligations of any of them or (C) the failure by the Administrative Agent, the Issuing Bank or any Lender to attempt, or delay by it in attempting, to collect any Obligations from any other Company or Guaranty Obligations from any Guarantor or to realize upon any Collateral; and the Issuing Bank, the Agents and the Lenders may deal with any of the Companies as they see fit without prejudice or effect on this Financing Agreement or the security for the Obligations; and each Company hereby irrevocably waives all defenses that it might otherwise have based on any of the matters identified above in this Paragraph 11.2 or based on any other circumstances other than the full, final and indefeasible payment of all Obligations; provided that the foregoing provisions of this sentence relating to any Company and an Obligation shall not be understood to constitute a waiver of any defense based on the full and final release of all responsibility of such Company for such Obligation given in writing by the Agents, the Issuing Bank and the Lenders.
(c) . The provisions of this Paragraph 11.2 Section 22 are made for the benefit of the Agents, the Issuing Bank and the Lenders each holder of Notes and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Companies as often as occasion therefor may arise and without requirement on the part of the Agents, the Issuing Bank and/or the Lenders Collateral Agent or such successors or assigns any holder of Notes first to marshal any of its or their claims or to exercise any of its or their rights against any other Company or to exhaust any remedies available to it or them against any other Company or to resort to any other source or means of obtaining payment of any of the Obligations hereunder obligations of the Companies under the Note Documents or to elect any other remedy. The provisions of this Paragraph 11.2 Section 22 shall remain in effect until all the obligations of the Obligations Companies under the Note Documents shall have been fully, finally and indefeasibly paid in cashfull or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the obligations of the Companies under the Note Documents, is rescinded or must otherwise be restored or returned by any holder of any Note upon the insolvency, bankruptcy or reorganization of any Company, or otherwise, the provisions of this Section 22 will forthwith be reinstated in effect, as though such payment had not been made. Notwithstanding any provision of any Note Document, the liability of each Company under the Note Documents as of any date shall be limited to an amount equal to the greatest amount that would not render such Company’s obligations under the Note Documents subject to avoidance, discharge or reduction as of such date as a fraudulent transfer or conveyance under applicable Bankruptcy Law or other laws, in each instance after giving effect to all other liabilities of such Company, contingent or otherwise, that are relevant under applicable Bankruptcy Law or other laws (specifically excluding, however, any liabilities of such Company to the extent that such liabilities would be discharged by payments made by such Company hereunder, and after giving effect to any rights of subrogation, contribution, reimbursement, indemnity or similar rights of such Company pursuant to applicable laws or otherwise, including any agreement of such Company with any other Person providing for an equitable allocation of such liability). Each Company acknowledges and agrees that the obligations of such Company under the Note Documents may from time to time exceed the limitation of liability set forth in the preceding sentence without discharging, limiting or otherwise affecting the obligations of any Company under the Note Documents or the rights and remedies of any holder of any Note.
Appears in 1 contract
Joint and Several Liability of Companies. (a) Notwithstanding anything in this Financing Agreement or any other Loan Document to the contrary, each of the Companies hereby accepts Each Company is accepting joint and several liability hereunder and under the other Loan Note Documents in consideration of the financial accommodations to be provided by the Administrative Agent, the Lenders Collateral Agent and the Issuing Bank Noteholders under this Financing Agreement and the other Loan DocumentsAgreement, for the mutual benefit, directly and indirectly, of each of the Companies and other L/C Eligible Account Parties Company and in consideration of the undertakings of the other Companies to accept joint and several liability for the Loans and the other Obligations hereunder, as well as the undertaking of Trim Trends for its own obligations relating to Letters of Credit issued for its account. Obligations.
(b) Each of the CompaniesCompany, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Companies, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Paragraph 11.2Section 2.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of Person composing the Companies without preferences or distinction among them. .
(c) If and to the extent that any of the Companies shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Persons composing Companies will make such payment with respect to, or perform, such Obligation.
(bd) Subject to the terms and conditions hereof, the The Obligations of each of the Person composing Companies under the provisions of this Paragraph 11.2 Section 2.12 constitute the absolute and unconditional, full recourse Obligations of each of the Person composing Companies enforceable against each such Company to the full extent of its properties and assets, irrespective of all the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided in this Agreement, each Person composing Companies hereby waives notice of acceptance of its joint and several liability, notice of any Notes issued under or pursuant to this Agreement, notice of the followingoccurrence 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 Collateral Agent or the Noteholders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Person composing Companies hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Collateral Agent or Noteholders at any time or times in respect of any default by any other Person composing Companies in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Collateral Agent or Noteholders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Person composing Companies. Without limiting the generality of the foregoing, each Company assents to any other action or delay in acting or failure to act on the part of the Collateral Agent or any Noteholder with respect to the failure by any Person composing Companies 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 2.12 afford grounds for terminating, discharging ------------ or relieving any Person composing Companies, in whole or in part, from any of its Obligations under this Section 2.12, it ------------ being the intention of each Person composing Companies that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Person composing Companies under this Section 2.12 shall not be discharged except by performance and ------------ then only to the extent of such performance. The Obligations of each Person composing Companies under this Section 2.12 ------------ shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Person composing Companies or the Collateral Agent or any Noteholder. The joint and several liability of the Persons composing Companies hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, constitution or place of formation of any of the Persons composing Companies or the Collateral Agent or any Noteholder.
(f) Each Person composing Companies represents and warrants to the Collateral Agent and Noteholders that such Company is currently informed of the financial condition of Companies and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Person composing Companies further represents and warrants to the Collateral Agent and Noteholders that such Company has read and understands the terms and conditions of the Note Documents. Each Person composing Companies hereby covenants that such Company will continue to keep informed of Companies' financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.
(g) Each of the Persons composing Companies waives all rights and defenses arising out of an election of remedies by the Collateral Agent or any Noteholder, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Collateral Agent's or such Noteholder's rights of subrogation and reimbursement against such Company by the operation of Section 580(d) of the California Code of Civil Procedure or otherwise.
(h) Each of the Persons composing Companies waives all rights and defenses that such Company may have because the Obligations are secured by Real Property. This means, among other things:
(i) The Collateral Agent and Noteholders may collect from such Company without first foreclosing on any lack of validity Real or enforceability, any irregularity, default or omission in any relevant documentation, including any Loan Document, or of the Obligations, or any delay, failure or omission to enforce or agreement not to enforce, or the stay or enjoining, Personal Property Collateral pledged by order of court, by operation of law or otherwise, of the exercise of any right with respect to the foregoing (including, in each case, without limitation, as a result of the insolvency, bankruptcy or reorganization of the Issuing Bank, any Agent, any Lender, any Company or any other Person);Companies.
(ii) any change in If the time, manner or place of payment of, or in any other term in respect of, all Collateral Agent or any of the Loan Documents;Noteholder forecloses on any Real Property Collateral pledged by Companies:
(iiiA) any exchange or release of, or non-perfection of any lien on or in, any Collateral, any release or amendment or waiver of or consent to any departure from any guaranty or security, for all or any The amount of the Obligations or any release of any other Obligor from all or any part of its obligations under this Financing Agreement or any of may be reduced only by the terms of any other Loan Document;price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(iv) any claim, set-off, counterclaim, defense or other rights, including any as to marshalling of any security or guaranties that any Obligor may have at any time and from time to time against the Issuing Bank, any Agent, any Lender, or any other Person, whether in connection with the transactions contemplated in the Loan Documents or any other transaction; or
(v) any other circumstances which might otherwise constitute a defense based on suretyship or otherwise available to, or a discharge of, any Company in respect of (A) the Obligations of any Company, (B) The Collateral Agent and Noteholders may collect from such Company even if Collateral Agent or Noteholders, by foreclosing on the release of or Real Property Collateral, has destroyed any right such Company may have to collect from the other Companies. This is an unconditional and irrevocable waiver of any rights against and defenses such Company may have because the Obligations are secured by Real Property. These rights and defenses include, but are not limited to, any other Obligor and the settlementrights or defenses based upon Section 580a, compromise 580b, 580d or release of any Obligations of any of them or (C) the failure by the Administrative Agent, the Issuing Bank or any Lender to attempt, or delay by it in attempting, to collect any Obligations from any other Company or Guaranty Obligations from any Guarantor or to realize upon any Collateral; and the Issuing Bank, the Agents and the Lenders may deal with any 726 of the Companies as they see fit without prejudice or effect on this Financing Agreement or the security for the Obligations; and each Company hereby irrevocably waives all defenses that it might otherwise have based on any California Code of the matters identified above in this Paragraph 11.2 or based on any other circumstances other than the full, final and indefeasible payment of all Obligations; provided that the foregoing provisions of this sentence relating to any Company and an Obligation shall not be understood to constitute a waiver of any defense based on the full and final release of all responsibility of such Company for such Obligation given in writing by the Agents, the Issuing Bank and the LendersCivil Procedure.
(ci) The provisions of this Paragraph 11.2 Section 2.12 are made for the benefit of the AgentsCollateral Agent, the Issuing Bank and the Lenders Noteholders and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Persons composing Companies as often as occasion therefor may arise and without requirement on the part of the Agentsany such Collateral Agent, the Issuing Bank and/or the Lenders Noteholder, successor or such successors or assigns assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Company Persons composing Companies or to exhaust any remedies available to it or them against any of the other Company Persons composing Companies 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 Paragraph 11.2 Section 2.12 shall remain in effect until all of the Obligations shall have been fully, finally and indefeasibly paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Collateral Agent or Noteholder upon the insolvency, bankruptcy or reorganization of any of the Persons composing Companies, or otherwise, the provisions of this Section 2.12 will forthwith be reinstated in effect, as though such payment had not been made.
(j) Each of the Persons composing Companies hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Persons composing Companies with respect to any liability incurred by it hereunder or under any of the other Note Documents, any payments made by it to the Collateral Agent or the Noteholders with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any Company may have against any other Company with respect to any payments to any Collateral Agent or Noteholder hereunder or under any other Note Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Company, 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 Company therefor.
(k) Each of the Persons composing Companies hereby agrees that, after the occurrence and during the continuance of any Default or Event of Default, the payment of any amounts due with respect to the indebtedness owing by any Company to any other Company is hereby subordinated to the prior payment in full in cash of the Obligations. Each Company hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Company will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Company owing to such Company until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Company shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Company as trustee for the Noteholder Group, and such Company shall deliver any such amounts to the Collateral Agent for application to the Obligations.
(l) It is understood that while the amount of the Obligations for which Companies have joint and several liability hereunder is not limited, if in any action or proceeding involving any state, federal or foreign bankruptcy, insolvency or other law affecting the rights or creditors generally, this joint and several liability would be held or determined to be void, invalid or unenforceable on account of the amount of the aggregate liability under this Section 2.12, then, notwithstanding any other provision of this Section 2.12 to the contrary, the aggregate amount of such liability shall, without any further action of the Collateral Agent, the Noteholders or any other Person, be automatically limited and reduced to the highest amount which is valid and enforceable as determined in such action or proceeding.
Appears in 1 contract
Joint and Several Liability of Companies. 15.1 All loans made to the Companies shall be deemed jointly funded to, and received by, the Companies. Each Company jointly and severally agrees to pay, and shall be jointly and severally liable for payment and performance of, all Obligations. Each Company acknowledges and agrees that the joint and several liability of the Companies is provided as an inducement to Agent and Lenders to provide loans and other financial accommodations to the Companies, and that each such loan or other financial accommodation shall be deemed to have been done or extended by Agent and Lenders in consideration of, and reliance upon, the joint and several liability of the Companies. The joint and several liability of each Company hereunder is absolute, unconditional and continuing, regardless of the validity or enforceability of any of the Obligations, or the fact that a security interest or lien in any Collateral may not be enforceable or may be subject to the equities or defenses or prior claims of others, or may be invalid or defective in any way and for any reason. Each Company hereby waives, to the full extent permitted by applicable laws, (ai) Notwithstanding anything in all notices to which such Company may be entitled as co-obligor with respect to the Obligations, including, without limitation, notice of (x) acceptance of this Financing Agreement, (y) the making of loans or other financial accommodations under this Financing Agreement, or the creation or existence of the Obligations, and (z) presentment, demand, protest, notice of protest, and notice of non-payment; and (ii) all defenses based on (w) any modification (or series of modifications) of this Financing Agreement or any other Loan Document to the contrary, each of the Companies hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration that may create a substituted contract, or that may fundamentally alter the risks imposed on such Company hereunder, (x) the release of the financial accommodations to be provided by the Administrative Agent, the Lenders and the Issuing Bank under any other Company from its duties this Financing Agreement and or the other Loan Documents, for or the mutual benefit, directly and indirectly, of each extension of the Companies and time of performance of any other L/C Eligible Account Parties and in consideration Company’s duties hereunder or thereunder, (y) the taking, releasing, impairment or abandonment of any Collateral, or the settlement, release or compromise of the undertakings Obligations or any other Company’s liabilities with respect to all or any portion of the Obligations, or (z) any other Companies act (or failure to accept act) that fundamentally alters the risks imposed on such Company by virtue of its joint and several liability hereunder. It is the intent of each Company by this paragraph to waive any and all suretyship defenses available to such Company with respect to the Obligations, whether or not specifically numerated above.
15.2 Each Company hereby agrees that until the full and final payment and satisfaction of the Obligations and the termination of this Financing Agreement, such Company will not exercise any subrogation, contribution or other right or remedy against the other Company or security for any of the Obligations arising by reason of such Company’s performance or satisfaction of its joint and several liability hereunder. In addition, each Company agrees that (i) such Company’s right to receive any payment of amounts due with respect to such subrogation, contribution or other rights is subordinated to the full and final payment and satisfaction of the Obligations, and (ii) such Company agrees not to demand, xxx for or otherwise attempt to collect any such payment until the full and final payment and satisfaction of the Obligations and the termination of this Financing Agreement.
15.3 Notwithstanding any provisions of this Financing Agreement to the contrary, it is the intent of the parties hereto that the joint and several nature of the obligations of the Companies, and the security interests granted by the Companies to secure the Obligations, not constitute a fraudulent conveyance under Section 548 of Chapter 11 of Title II of the United States Code (11 U.S.C. § 101, et seq.), as amended, or a fraudulent conveyance or fraudulent transfer under the applicable provisions of any fraudulent conveyance, fraudulent transfer or similar law of any state, nation or other governmental unit, as in effect from time to tome. Accordingly, Agent, Lenders and the Companies agree that if the Obligations of any Company hereunder, or the security interests granted by such Company securing the Obligations would, but for the Loans and application of this sentence, constitute a fraudulent conveyance or fraudulent transfer under applicable law, the other Obligations of such Company hereunder, as well as the undertaking of Trim Trends for its own obligations relating to Letters of Credit issued for its account. Each of the Companiessecurity interests serving such Obligations, jointly shall be valid and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Companies, with respect enforceable only to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Paragraph 11.2), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Companies without preferences or distinction among them. If and to the maximum extent that any of the Companies shall fail to make any payment with respect to any of the Obligations as and when due would not cause such obligations, liabilities or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Companies will make such payment with respect to, or perform, such Obligation.
(b) Subject to the terms and conditions hereof, the Obligations of each of the Companies under the provisions of this Paragraph 11.2 constitute the absolute and unconditional, full recourse Obligations of each of the Companies enforceable against each Company to the full extent of its properties and assets, irrespective of all of the following:
(i) any lack of validity or enforceability, any irregularity, default or omission in any relevant documentation, including any Loan Document, or of the Obligations, or any delay, failure or omission to enforce or agreement not to enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise of any right with respect to the foregoing (including, in each case, without limitation, as a result of the insolvency, bankruptcy or reorganization of the Issuing Bank, any Agent, any Lender, any Company or any other Person);
(ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Loan Documents;
(iii) any exchange or release of, or non-perfection of any lien on or in, any Collateral, any release or amendment or waiver of or consent to any departure from any guaranty or security, for all or any of the Obligations or any release of any other Obligor from all or any part of its obligations under this Financing Agreement or any of the terms of any other Loan Document;
(iv) any claim, set-off, counterclaim, defense or other rights, including any as to marshalling of any security or guaranties that any Obligor may have at any time and from time to time against the Issuing Bank, any Agent, any Lender, or any other Person, whether in connection with the transactions contemplated in the Loan Documents or any other transaction; or
(v) any other circumstances which might otherwise constitute a defense based on suretyship or otherwise available to, or a discharge of, any Company in respect of (A) the Obligations of any Company, (B) the release of or waiver of any rights against any other Obligor and the settlement, compromise or release of any Obligations of any of them or (C) the failure by the Administrative Agent, the Issuing Bank or any Lender to attempt, or delay by it in attempting, to collect any Obligations from any other Company or Guaranty Obligations from any Guarantor or to realize upon any Collateral; and the Issuing Bank, the Agents and the Lenders may deal with any of the Companies as they see fit without prejudice or effect on this Financing Agreement or the security for the Obligations; and each Company hereby irrevocably waives all defenses that it might otherwise have based on any of the matters identified above in this Paragraph 11.2 or based on any other circumstances other than the full, final and indefeasible payment of all Obligations; provided that the foregoing provisions of this sentence relating to any Company and an Obligation shall not be understood interests to constitute a waiver of any defense based on the full and final release of all responsibility of such Company for such Obligation given in writing by the Agents, the Issuing Bank and the Lendersfraudulent conveyance or fraudulent transfer under applicable law.
(c) The provisions of this Paragraph 11.2 are made for the benefit of the Agents, the Issuing Bank and the Lenders and their successors and assigns, and may be enforced by it or them from time to time against any or all of the Companies as often as occasion therefor may arise and without requirement on the part of the Agents, the Issuing Bank and/or the Lenders or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any other Company or to exhaust any remedies available to it or them against any other Company 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 Paragraph 11.2 shall remain in effect until all of the Obligations have been fully, finally and indefeasibly paid in cash.
Appears in 1 contract
