Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them. (b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. (c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated. (d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets. (e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders. (f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made. (g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 7 contracts
Samples: Term Loan Agreement (Brandywine Operating Partnership, L.P.), Term Loan Agreement (Brandywine Operating Partnership, L.P.), Revolving Credit Agreement (Brandywine Operating Partnership, L.P.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other the Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower the Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Administrative Agent’s or such Lender’s rights of subrogation and reimbursement against such Borrower by the operation of Section 580(d) of the California Code of Civil Procedure or otherwise:
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Administrative Agent, Lenders and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 7 contracts
Samples: Eighth Amendment Agreement (Benefitfocus,Inc.), Senior Secured Revolving Credit Facility (Benefitfocus,Inc.), Credit Agreement (Alarm.com Holdings, Inc.)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents for the Obligations, in consideration of the financial accommodation accommodations to be provided by the Agents and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit Documents, Section 4.05) it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.05 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(eb) Except as otherwise expressly provided herein, Notwithstanding anything in this Agreement or any other Loan Document to the extent permitted by lawcontrary, each Borrower of the Borrowers hereby waives notice of acceptance of its accepts joint and several liability hereunder and under the other Loan Documents for the Obligations in consideration of all extensions of credit the financial accommodations to the Borrowers be provided by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or Agents and the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit other Loan Documents, for the mutual benefit, directly and indirectly, of any laws that exonerate or limit each of the Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-borrowers or sureties debtor, joint and any defenses provided by those laws. Each Borrower hereby assents toseveral liability with the other Borrowers, with respect to the payment and waives notice of, any extension or postponement performance of all of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, 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 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations Obligations arising under this Section 2.44.05), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each Borrower that, so long as of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance as and then only when due or to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or perform any of the LendersObligations in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(fc) The provisions of this Section 2.4 4.05 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.05 shall remain in effect until all of the Obligations shall have been paid Paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeFull.
(gd) Notwithstanding Each of the Borrowers hereby agrees that it will not enforce any provision rights that it may now or hereafter acquire against any other entity constituting a Borrower or a Guarantor that arise from the existence, payment, performance or enforcement of such entity’s obligations under this Agreement and the other Loan Documents, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the contrary contained herein Agent and the Lenders against any other entity constituting a Borrower or a Guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any other entity constituting a Borrower or a Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Agents or the Lenders hereunder or under any other Credit DocumentsLoan 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 extent Payment in Full of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 7 contracts
Samples: Financing Agreement (Funko, Inc.), Financing Agreement (Funko, Inc.), Financing Agreement (Funko, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 1.08 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the and/or Lenders under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the and/or Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the and/or Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the and/or Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws Laws or regulations thereunder which might, but for the provisions of this Section 2.41.08, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.41.08, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 1.08 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 1.08 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower any reconstruction or a similar proceeding with respect to any Borrower, the Administrative Agent or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower, the Administrative Agent or any of the LendersLender.
(f) The provisions of this Section 2.4 1.08 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. Without limiting the generality of the foregoing, each Borrower hereby specifically waives the benefits of N.C. Gen. Stat. §§26-7 through 26-9, inclusive, to the extent applicable. The provisions of this Section 2.4 1.08 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeFully Satisfied.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Loan Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
Appears in 6 contracts
Samples: Credit Agreement (Highwoods Realty LTD Partnership), Credit Agreement (Highwoods Realty LTD Partnership), Credit Agreement (Highwoods Realty LTD Partnership)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.06), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.06 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 4.06 are made for the benefit of the Agent, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agent, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.06 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agent or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral, until such time as all of the 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 the Agent or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 6 contracts
Samples: Financing Agreement (Life Sciences Research Inc), Financing Agreement (Gerber Scientific Inc), Financing Agreement (Life Sciences Research Inc)
Joint and Several Liability of the Borrowers. (a) Each Borrower agrees that it is jointly and severally liable for the obligations of the other Borrowers hereunder, including with respect to the payment of principal of and interest on all Loans and the payment of fees and indemnities and reimbursement of costs and expenses. Each Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) . Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the each other Borrower Borrower, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each all of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, the event each other Borrower will make such payment with respect to, or perform, such ObligationObligations. A breach hereof or Default or Event of Default hereunder as to any single Borrower shall constitute a breach, Default or Event of Default as to all the Borrowers. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of the Loans made under this Agreement, notice of the occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Collateral Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement Agreement, except for any demands, notices and other formalities expressly required under the benefit terms of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsthis Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent or the Lenders at any time or times in respect of any default (including any Default or Event of Default) by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent, the Collateral Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent, the Collateral Agent or the Lenders, including, without limitation, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.410.23, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.410.23, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such Borrower under this Section 2.4 10.23 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower. With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assignsother Borrowers hereunder, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other such Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect waives, until all the Obligations shall have been paid in full (other than contingent indemnification obligations that are not yet due and payable or otherwise fully satisfied. If at any timeas to which no claim has been asserted) and this Agreement shall have been terminated, any paymentright to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender.
(b) Subject to the immediately preceding sentence, to the extent that any Borrower shall be required to pay a portion of the Obligations which shall exceed the amount of Loans other extensions of credit received by such Borrower and all interest, costs, fees and expenses attributable to such Loans or other extensions of credit, then such Borrower shall be reimbursed by the other Borrowers for the amount of such excess. This clause is intended only to define the relative rights of Borrowers, and nothing set forth in this clause is intended or shall impair the obligations of each Borrower, jointly and severally, to pay to Administrative Agent and Lenders the Obligations as and when the same shall become due and payable in accordance with the terms hereof. Notwithstanding anything to the contrary set forth in this clause or any other provisions of this Agreement, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by each Borrower to secure such Obligations), not constitute a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower, each Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall automatically be deemed to have been amended accordingly, nunc pro tunc.
(c) Each Borrower’s obligation to pay and perform the Obligations shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of this Agreement, or any part thereofterm or provision therein, made as to any other Borrower, (ii) any amendment or waiver of or any consent to departure from this Agreement or any other Loan Document, in respect of any other Borrower, (iii) the application of any Loan proceeds to, or the extension of any other credit for the benefit of, any other Borrower, any other Loan Party, or any of their Subsidiaries or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 10.23, constitute a legal or equitable discharge of, or provide a right of setoff against, any Borrower’s obligations hereunder, in each case other than any payment in full of the Obligations (other than contingent indemnification obligations not yet due or owing). Each of the Borrowers further agree that (i) its obligations under this Agreement and the other Loan Documents shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvency, bankruptcy or reorganization of either of the Borrowersof, or otherwisethe application of any Debtor Relief Laws to, the provisions of this Section 2.4 will forthwith be reinstated and in effect any other Borrower, all as though such payment had not been made.
made and (gii) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)future.
Appears in 5 contracts
Samples: Fifth Amendment (Ortho Clinical Diagnostics Holdings PLC), Credit Agreement (Ortho Clinical Diagnostics Holdings PLC), Credit Agreement (Ortho Clinical Diagnostics Holdings PLC)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 1.07 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the and/or Lenders under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the and/or Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the and/or Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the and/or Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.41.07, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.41.07, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 1.07 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 1.07 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower any reconstruction or a similar proceeding with respect to any Borrower, the Administrative Agent or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower, the Administrative Agent or any of the LendersLender.
(f) The provisions of this Section 2.4 1.07 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. Without limiting the generality of the foregoing, each Borrower hereby specifically waives the benefits of N.C. Gen. Stat. §§26-7 through 26-9, inclusive, to the extent applicable. The provisions of this Section 2.4 1.07 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeFully Satisfied.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Loan Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
Appears in 4 contracts
Samples: Five Year Term Loan Agreement (Highwoods Realty LTD Partnership), Seven Year Term Loan Agreement (Highwoods Realty LTD Partnership), Term Loan Agreement (Highwoods Realty LTD Partnership)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.14 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Agreement), notice of any action at any time taken or omitted by the Administrative Agent or the Lenders Lender under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the LendersLender, 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 2.42.14, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.14, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.14 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.14 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any reconstruction or similar proceeding with respect to any Borrower or a any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the LendersLender.
(f) The provisions of this Section 2.4 2.14 are made for the benefit of the Administrative Agent, L/C issuer, Swing Line Lender, the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.14 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.14 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 4 contracts
Samples: Credit Agreement (Omega Healthcare Investors Inc), Credit Agreement (Omega Healthcare Investors Inc), Credit Agreement (Omega Healthcare Investors Inc)
Joint and Several Liability of the Borrowers. (a) Each The Loan Document Obligations of the Borrowers is accepting shall be joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) nature. Each of the Borrowers jointly and severally Borrower hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint agrees that it is jointly and several liability with the other Borrower with respect to the payment and performance of severally liable for all Loan Document Obligations of the Obligations arising under this Credit Agreement Borrowers hereunder and the other Credit Loan Documents, it being the intention of the parties hereto that all the whether now or hereafter existing or due or to become due. The Loan Document Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If under the Loan Documents may be enforced by the Administrative Agent and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid against any Borrower or all Borrowers in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default manner or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted order selected by the Administrative Agent or the Required Lenders in their sole discretion. Without limiting the foregoing provisions of this Section 2.20, each Borrower acknowledges and agrees that:
(a) its obligations under this Agreement shall remain enforceable against it even though such obligations may be unenforceable or not allowable against any Borrower during the existence of an insolvency proceeding against any Borrower or otherwise;
(b) its obligations under this Agreement are independent of the obligations of any other Borrower, and a separate action or actions may be brought and prosecuted against it in respect of such obligations irrespective of whether any action is brought against any other Borrower or any other Borrower is joined in any such action or actions;
(c) it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any of all of the following: (i) any lack of validity or enforceability of this Agreement or any agreement or instrument relating thereto in respect of any other Borrower; (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of any other Borrower under or in respect of this Agreement, or any other amendment or waiver of the obligations hereunderor any consent to departure from this Agreement, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in other Borrower; (iii) any change, restructuring or termination of the performance structure or satisfaction existence of any termother Borrower; (iv) the failure of any other person to execute or deliver any other agreement or the release or reduction of liability of any other person with respect to any obligations of the Borrowers under this Agreement; or (v) any other circumstance (including any statute of limitations but other than the Loan Document Obligations having been paid in full) or any existence or reliance on any representation by any other person that might otherwise constitute a defense available to, covenant, condition or provision of this Credit Agreementa discharge or, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of ;
(d) its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder Agreement shall continue in full force and effect notwithstanding to be effective or be reinstated, as the case may be, if at any absorption, merger, amalgamation or time any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations such obligations is rescinded or must otherwise be restored or returned by the Lenders any person upon the insolvency, bankruptcy or reorganization of either of the Borrowersany other Borrower, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect all as though such payment had not been made.;
(e) it hereby unconditionally and irrevocably waives any right to revoke its joint and several liability under the Loan Documents and acknowledges that such liability is continuing and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in the future;
(f) in any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of the Subsidiary Borrower under this Agreement would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of the any other creditors, on account of the amount of its liability under this Agreement, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Borrower, any Loan Document or any other person be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 2.20(g) and any rights of subrogation, indemnity or reimbursement) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceedings; and
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, it hereby agrees that to the extent the obligations that any Borrower shall have paid more than its proportionate share of either any payment made hereunder, such Borrower shall be adjudicated entitled to be invalid or unenforceable for seek and receive contribution from and against any reason (including, without limitation, because other Borrower hereunder which has not paid its proportionate share of such payment; provided that the provisions of this Section 2.20(g) shall in no respect limit the obligations and liabilities of any applicable state Borrower to the Administrative Agent and the Lenders, and each Borrower shall remain liable to the Administrative Agent and the Lenders for the full amount hereunder; provided, however each Borrower agrees that the foregoing rights of contribution as well as any right of subrogation, indemnity or federal law relating reimbursement that it may acquire or that may arise against any other Borrower due to fraudulent conveyances any payment or transfers) then the obligations performance made under this Agreement shall in all respects be subordinated and junior in right of payment to, and shall not be exercised by such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and includinguntil, without limitation, the Bankruptcy Code)all Loan Document Obligations have been paid in full.
Appears in 4 contracts
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.), Term Credit Agreement (Ascena Retail Group, Inc.), Restructuring Support Agreement (Ascena Retail Group, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation Loans and Letters of Credit to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of themthem with respect to the Obligations.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsAgreement, it being the intention of the parties hereto that all the Obligations shall be the joint and several payment obligations of each of all the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations hereunder as and when due or to perform any of the Obligations in accordance with the terms thereofdue, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, to such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 10.18 constitute full recourse obligations of such Borrower, Borrower enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, and, to the extent permitted by lawapplicable Legal Requirements, each Borrower hereby waives notice irrespective of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersvalidity, notice of occurrence of any Default regularity or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms enforceability of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenderscircumstance whatsoever.
(fe) The provisions of this Section 2.4 10.18 are made for the benefit of the Lenders and the Administrative Agent and their successors and permitted assigns, and may be enforced by them in accordance with the terms of this Agreement from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Administrative Agent first to marshal xxxxxxxx any of its their claims or to exercise any of its their rights against the any other Borrower or to exhaust any remedies available to it them against the any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 10.18 shall remain in effect until all the Obligations obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations obligations, is rescinded or must otherwise be restored or returned by the Lenders or the Administrative Agent upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 10.18 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 4 contracts
Samples: Credit Agreement, Credit Agreement (SunCoke Energy Partners, L.P.), Credit Agreement (SunCoke Energy Partners, L.P.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower the Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.19), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 2.19 constitute full recourse obligations of such Borrower, each of the Borrowers enforceable against it each such Borrower to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 4 contracts
Samples: Credit Agreement (Unifirst Corp), Credit Agreement (Unifirst Corp), Credit Agreement (Unifirst Corp)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agents and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.06), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.06 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 4.06 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.06 shall remain in effect until all of the Obligations (other than unasserted contingent indemnification Obligations) shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agents or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral, until such time as all of the Obligations (other than unasserted contingent indemnification 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 the Agents or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason Obligations (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Codeother than unasserted contingent indemnification Obligations).
Appears in 4 contracts
Samples: Financing Agreement (Xponential Fitness, Inc.), Financing Agreement (Xponential Fitness, Inc.), Financing Agreement (Xponential Fitness, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.14 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Agreement), notice of any action at any time taken or omitted by the Administrative Agent or the Lenders Lender under or in respect of any of the obligations hereunderObligations hereunder except as expressly provided herein, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses except as expressly provided by those lawsherein. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the LendersLender, 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 2.42.14, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.14, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.14 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.14 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any reconstruction or similar proceeding with respect to any Borrower or a any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the LendersLender.
(f) The provisions of this Section 2.4 2.14 are made for the benefit of the Administrative Agent, L/C Issuer, Swing Line Lender, the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.14 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.14 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
Appears in 4 contracts
Samples: Credit Agreement (Aviv Healthcare Properties L.P.), Credit Agreement (Aviv Reit, Inc.), Credit Agreement (Aviv Reit, Inc.)
Joint and Several Liability of the Borrowers. (a) Each Borrower agrees that it is jointly and severally liable for the obligations of the Borrowers other Borrower under the Loan Documents, including with respect to the payment of principal of and interest on all Loans and the payment of fees and indemnities and reimbursement of costs and expenses. Each Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) . Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Borrower Borrower, with respect to the payment and performance of all of the Obligations arising obligations under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations such obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among between them.
(c) . If and to the extent that either of the Borrowers Borrower shall fail to make any payment with respect to any of the Obligations obligations under the Loan Documents as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, event the other Borrower will make such payment with respect to, or perform, such Obligationobligations. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of the Loans made under this Agreement, notice of the occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Collateral Agent or the Lenders under or in respect of any of the obligations hereunderunder the Loan Documents, any requirement of diligence or to mitigate damages and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement Agreement, except for any demands, notices and other formalities expressly required under the benefit terms of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsthis Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligationsobligations under the Loan Documents, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent or the Lenders at any time or times in respect of any default (including any Default or Event of Default) by either the other Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent, the Collateral Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent, the Collateral Agent or the Lenders, including, without limitation, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.410.22, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.410.22, it being the intention of each Borrower that, so long as any of the Obligations hereunder obligations under the Loan Documents remain unsatisfied, the obligations of such Borrower under this Section 2.4 10.22 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower the other Borrower. With respect to each Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the Lenders.
(f) The provisions of this Section 2.4 are made for other Borrowers hereunder, such Borrower waives, until the benefit of obligations under the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations Loan Documents shall have been paid in full in cash (other than contingent indemnification obligations that are not yet due and payable or otherwise fully satisfied. If at any timeas to which no claim has been asserted) and this Agreement shall have been terminated, any paymentright to enforce any right of subrogation or any remedy which the Administrative Agent, the Collateral Agent and/or any Lender now has or may hereafter have against the other Borrower, any endorser or any guarantor of all or any part of the obligations under the Loan Documents, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent and/or any Lender to secure payment of the obligations under the Loan Documents or any other liability of the Borrowers to the Administrative Agent, the Collateral Agent and/or any Lender.
(b) Subject to the immediately preceding sentence, to the extent that either Borrower shall be required to pay a portion of the obligations under the Loan Documents which shall exceed the amount of Loans other extensions of credit received by such Borrower and all interest, costs, fees and expenses attributable to such Loans or other extensions of credit, then such Borrower shall be reimbursed by the other Borrower for the amount of such excess. This paragraph is intended only to define the relative rights of Borrowers, and nothing set forth in this paragraph is intended or shall impair the obligations of each Borrower, jointly and severally, to pay to Administrative Agent, the Collateral Agent and Lenders the obligations under the Loan Documents as and when the same shall become due and payable in accordance with the terms hereof. Notwithstanding anything to the contrary set forth in this paragraph or any other provisions of this Agreement, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the obligations under the Loan Documents of the other Borrower (and any Lien granted by each Borrower to secure such obligations), not constitute a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower, the Administrative Agent, the Collateral Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by either Borrower in respect of the obligations under the Loan Documents of the other Borrower (or any Liens granted by such Borrower to secure such obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall automatically be deemed to have been amended accordingly, nunc pro tunc.
(c) Each Borrower’s obligation to pay and perform the obligations under the Loan Documents shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of this Agreement, or any part thereofterm or provision therein, made as to the other Borrower, (ii) any amendment or waiver of or any consent to departure from this Agreement or any other Loan Document, in respect of the other Borrower, (iii) the application of any Loan proceeds to, or the extension of any other credit for the benefit of, the other Borrower, any other Loan Party, or any of their Subsidiaries or (iv) any other event or circumstance whatsoever, whether or not similar to any of the Obligations foregoing, that might, but for the provisions of this Section 10.22, constitute a legal or equitable discharge of, or provide a right of setoff against, either Borrower’s obligations hereunder, in each case other than any payment in full of such obligations (other than contingent indemnification obligations not yet due or owing). Each of the Borrowers further agree that (i) its obligations under this Agreement and the other Loan Documents shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvency, bankruptcy or reorganization of either of the Borrowersof, or otherwisethe application of any Debtor Relief Laws to, the provisions of this Section 2.4 will forthwith be reinstated and in effect other Borrower, all as though such payment had not been made.
made and (gii) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)future.
Appears in 3 contracts
Samples: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (Outfront Media Minnesota LLC), Credit Agreement (CBS Outdoor Americas Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 3 contracts
Samples: Term Loan Agreement (Brandywine Realty Trust), Revolving Credit Agreement (Brandywine Operating Partnership Lp /Pa), Revolving Credit Agreement (Brandywine Operating Partnership Lp /Pa)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(m) Each entity composing the Borrower hereby irrevocably appoints NerdWallet as the borrowing agent and attorney-in-fact for all entities composing the Borrower (the “Administrative Borrower”), which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity composing the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Borrower. Each entity composing the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower and all other notices and instructions under this Agreement and the other Loan Documents, and (b) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents.
Appears in 3 contracts
Samples: Senior Secured Credit Facilities Credit Agreement (Nerdwallet, Inc.), Senior Secured Credit Facilities Credit Agreement (Nerdwallet, Inc.), Senior Secured Credit Facilities Credit Agreement (Nerdwallet, Inc.)
Joint and Several Liability of the Borrowers. Each Borrower hereby irrevocably and unconditionally agrees that it is jointly and severally liable for all of the liabilities, obligations, covenants and agreements of the Borrowers hereunder and under the other Loan Documents, whether now or hereafter existing or due or to become due. The obligations of the Borrowers under the Loan Documents may be enforced by the Administrative Agent and the other Secured Parties against any Borrower or all Borrowers in any manner or order selected by the Administrative Agent in its sole discretion. Each Borrower hereby irrevocably waives (i) any rights of subrogation and (ii) any rights of contribution, indemnity or reimbursement, in each case, that it may acquire or that may arise against any other Borrower due to any payment or performance made under this Agreement, in each case until all Obligations (other than unasserted contingent obligations) shall have been fully satisfied. Without limiting the foregoing provisions of this Section 9.18, each Borrower acknowledges and agrees that:
(a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders its obligations under this Credit Agreement, for Agreement shall remain enforceable against it even though such obligations may be unenforceable or not allowable against any other Borrower due to the mutual benefit, directly and indirectly, existence of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.any proceeding under any Debtor Relief Laws involving any other Borrower;
(b) Each its obligations under this Agreement are independent of the Borrowers jointly obligations of any other Borrower, and severally hereby irrevocably a separate action or actions may be brought and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the prosecuted against it in respect of such obligations irrespective of whether any action is brought against any other Borrower with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the or any other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences Borrower is joined in any such action or distinction among them.actions;
(c) If and to the extent that either it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.following:
(d) The obligations any lack of each Borrower under the provisions validity or enforceability of this Section 2.4 constitute full recourse obligations Agreement or any agreement or instrument relating thereto in respect of such any other Borrower, enforceable against it to the full extent of its properties and assets.;
(e) Except as otherwise expressly provided hereinany change in the time, to manner or place of payment of, or in any other term of, all or any of the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence obligations of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders other Borrower under or in respect of this Agreement, or any other amendment or waiver of the obligations hereunderor any consent to departure from this Agreement, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in other Borrower;
(f) any change, restructuring or termination of the performance structure or satisfaction existence of any termother Borrower;
(g) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other Person with respect to any obligations of the Borrowers under this Agreement;
(h) any other circumstance (including any statute of limitations but other than the Obligations having been fully satisfied) or any existence of or reliance on any representation by any other Person that might otherwise constitute a defense available to, covenant, condition or provision of this Credit Agreementa discharge of, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of ;
(i) its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder Agreement shall continue in full force and effect notwithstanding to be effective or be reinstated, as the case may be, if at any absorption, merger, amalgamation or time any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvencyinstitution of any proceeding under any Debtor Relief Laws of any other Borrower, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect all as though such payment had not been made.; and
(gj) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)future.
Appears in 3 contracts
Samples: Credit Agreement (Intersections Inc), Credit Agreement (Intersections Inc), Credit Agreement (Intersections Inc)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.2 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.42.2, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.2, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.2 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.2 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 2.2 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.2 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 2.2 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Brandywine Operating Partnership Lp /Pa), Term Loan Credit Agreement (Brandywine Realty Trust), Term Loan Credit Agreement (Brandywine Operating Partnership Lp /Pa)
Joint and Several Liability of the Borrowers. (a) Each of Notwithstanding anything in this Agreement or any other Loan Document to the Borrowers is accepting contrary, each Borrower hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by Administrative Agent, the Issuing Banks and Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of them.
Borrower Obligations (b) as hereinafter defined). Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrower, with respect to the payment and performance of all of the Borrower Obligations (including any Borrower Obligations arising under this Credit Agreement and the other Credit DocumentsSection), it being the intention of the parties hereto that all of the Borrower Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) . If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Borrower Obligations as and when due or to perform any of the Borrower Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such ObligationBorrower Obligations. Each Subject to the terms and conditions hereof, the Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 constitute the absolute and unconditional, full recourse obligations Borrower Obligations of such each Borrower, enforceable against it each such Person to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to irrespective of the extent permitted by lawvalidity, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default binding effect or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms enforceability of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of the other Loan Documents or any action at any time taken or omitted by the Administrative Agent or the Lenders under or other circumstances whatsoever. As used in respect of any of the this Section, “Borrower Obligations” means all liabilities and obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability nature of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of owed to the Borrowers as often as occasion therefor may arise and without requirement on Administrative Agent, the part of Issuing Banks, the Lenders first to marshal or any of its claims them under any Loan Document, whether for principal, interest (including all interest and expenses accrued or incurred subsequent to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment commencement of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of insolvency proceedings with respect to the Borrowers, whether or otherwisenot such interest or expenses are allowed as a claim in such proceeding), the provisions of this Section 2.4 will forthwith be reinstated fees, expenses, indemnification or otherwise and in effect as though such payment had not been made.
whether primary, secondary, direct, indirect, contingent, fixed or otherwise (g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the including obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Codeperformance).
Appears in 3 contracts
Samples: Credit Agreement (Carlyle Group L.P.), Credit Agreement (Carlyle Group L.P.), Credit Agreement (Carlyle Group L.P.)
Joint and Several Liability of the Borrowers. If, at any time there is more than one Person composing the Borrower:
(a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Xxxxxxx that such Xxxxxxxx is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Xxxxxxxx’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent or Lenders with respect to any of the Obligations or any collateral security therefor until the Discharge of Obligations. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Discharge of Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or in other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after the Discharge of Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior Discharge of Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(m) Each entity composing the Borrower and each other Loan Party hereby irrevocably appoints Appian Corporation as the borrowing agent and attorney-in-fact for all entities composing the Borrower and each other Loan Party (the “Administrative Borrower”), which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity composing the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Borrower. Each entity composing the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Administrative Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower or any other Loan Party and all other notices and instructions under this Agreement and the other Loan Documents, and (b) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents.
Appears in 3 contracts
Samples: Credit Agreement (Appian Corp), Credit Agreement (Appian Corp), Credit Agreement (Appian Corp)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Administrative Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.09), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.09 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 4.09 are made for the benefit of the Administrative Agent, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Administrative Agent, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.09 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Administrative Agent or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral, until such time as all of the 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 the Administrative Agent or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 3 contracts
Samples: Financing Agreement (Body Central Acquisition Corp), Financing Agreement (Body Central Acquisition Corp), Financing Agreement (Body Central Acquisition Corp)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.8 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Credit Agreement), notice of any action at any time taken or omitted by the Administrative Agent or the Lenders Banks under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders Banks at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders Banks in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the LendersBank, 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 2.42.8, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.8, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.8 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.8 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any reconstruction or similar proceeding with respect to any Borrower or a Lenderany Bank. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the LendersBank.
(f) The provisions of this Section 2.4 2.8 are made for the benefit of the Lenders Administrative Agent, Issuing Bank, Swingline Bank, the Banks and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Bank first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.8 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.8 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
Appears in 3 contracts
Samples: Credit Agreement (Owens & Minor Inc/Va/), Credit Agreement (Owens & Minor Inc/Va/), Credit Agreement (Owens & Minor Inc/Va/)
Joint and Several Liability of the Borrowers. (a) Each Borrower agrees that it is jointly and severally liable for the obligations of the Borrowers other Borrower hereunder, including with respect to the payment of principal of and interest on all Loans and the payment of fees and indemnities and reimbursement of costs and expenses. Each Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) . Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the each other Borrower Borrower, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each all of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, the event each other Borrower will make such payment with respect to, or perform, such ObligationObligations. A breach hereof or Default or Event of Default hereunder as to any single Borrower shall constitute a breach, Default or Event of Default as to all the Borrowers. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of the Loans made under this Agreement, notice of the occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Collateral Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement Agreement, except for any demands, notices and other formalities expressly required under the benefit terms of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsthis Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent or the Lenders at any time or times in respect of any default (including any Default or Event of Default) by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent, the Collateral Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent, the Collateral Agent or the Lenders, including, without limitation, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws Applicable Laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.49.24, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.49.24, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such Borrower under this Section 2.4 9.24 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower. With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assignsother Borrowers hereunder, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other such Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect waives, until all the Obligations shall have been paid in full (other than contingent indemnification obligations that are not yet due and payable or otherwise fully satisfied. If at any timeas to which no claim has been asserted) and this Agreement shall have been terminated, any paymentright to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part thereofof the Obligations, made in respect of and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because liability of any applicable state or federal law relating Borrower to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)an Agent and/or any Lender.
Appears in 3 contracts
Samples: Credit Agreement (Hemisphere Media Group, Inc.), Credit Agreement (Hemisphere Media Group, Inc.), Credit Agreement (Hemisphere Media Group, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally Borrower hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint agrees that it is jointly and several liability with the other Borrower with respect to the payment and performance of severally liable for all of the Obligations arising under this Credit Agreement liabilities, obligations, covenants and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each agreements of the Borrowers without preferences hereunder and under the other Loan Documents, whether now or distinction among them.
(c) If and hereafter existing or due or to the extent that either become due. The obligations of the Borrowers shall fail to make any payment with respect to any of under the Obligations as Loan Documents may be enforced by the Administrative Agent and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid against any Borrower or all Borrowers in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default manner or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted order selected by the Administrative Agent or the Required Lenders in their sole discretion. Each Borrower hereby irrevocably waives (i) any rights of subrogation and (ii) any rights of contribution, indemnity or reimbursement, in each case, that it may acquire or that may arise against any other Borrower due to any payment or performance made under this Agreement, in each case until all Obligations shall have been fully satisfied. Without limiting the foregoing provisions of this Section 2.15, each Borrower acknowledges and agrees that:
(a) its obligations under this Agreement shall remain enforceable against it even though such obligations may be unenforceable or not allowable against any other Borrower due to the existence of an insolvency proceeding involving any other Borrower;
(b) its obligations under this Agreement are independent of the obligations of any other Borrower, and a separate action or actions may be brought and prosecuted against it in respect of such obligations irrespective of whether any action is brought against any other Borrower or any other Borrower is joined in any such action or actions;
(c) it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of this Agreement or any agreement or instrument relating thereto in respect of any other Borrower;
(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of any other Borrower under or in respect of this Agreement, or any other amendment or waiver of the obligations hereunderor any consent to departure from this Agreement, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in other Borrower;
(iii) any change, restructuring or termination of the performance structure or satisfaction existence of any termother Borrower;
(iv) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other Person with respect to any obligations of the Borrowers under this Agreement; or
(v) any other circumstance (including any statute of limitations but other than the Obligations having been fully satisfied) or any existence of or reliance on any representation by any other Person that might otherwise constitute a defense available to, covenant, condition or provision of this Credit Agreementa discharge of, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of ;
(d) its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder Agreement shall continue in full force and effect notwithstanding to be effective or be reinstated, as the case may be, if at any absorption, merger, amalgamation or time any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvency, bankruptcy or reorganization of either of the Borrowersany other Borrower, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect all as though such payment had not been made.; and
(ge) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)future.
Appears in 3 contracts
Samples: Credit Agreement (Tidewater Inc), Credit Agreement (Tidewater Inc), Credit Agreement (Tidewater Inc)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation Loans and Letters of Credit to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of themthem with respect to the Obligations.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsAgreement, it being the intention of the parties hereto that all the Obligations shall be the joint and several payment obligations of each of all the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations hereunder as and when due or to perform any of the Obligations in accordance with the terms thereofdue, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, to such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 10.18 constitute full recourse obligations of such Borrower, Borrower enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, and, to the extent permitted by lawapplicable Requirements of Law, each Borrower hereby waives notice irrespective of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersvalidity, notice of occurrence of any Default regularity or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms enforceability of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenderscircumstance whatsoever.
(fe) The provisions of this Section 2.4 10.18 are made for the benefit of the Lenders and the Administrative Agent and their successors and permitted assigns, and may be enforced by them in accordance with the terms of this Agreement from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Administrative Agent first to marshal xxxxxxxx any of its their claims or to exercise any of its their rights against the any other Borrower or to exhaust any remedies available to it them against the any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 10.18 shall remain in effect until all the Obligations obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations obligations, is rescinded or must otherwise be restored or returned by the Lenders or the Administrative Agent upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 10.18 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 3 contracts
Samples: Credit Agreement (SunCoke Energy, Inc.), Credit Agreement (SunCoke Energy, Inc.), Credit Agreement (SunCoke Energy Partners, L.P.)
Joint and Several Liability of the Borrowers. (a) Each The Obligations of the Borrowers is accepting shall be joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) nature. Each of the Borrowers jointly and severally Borrower hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint agrees that it is jointly and several liability with the other Borrower with respect to the payment and performance of severally liable for all of the Obligations arising under this Credit Agreement liabilities, obligations, covenants and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each agreements of the Borrowers without preferences hereunder and under the other Loan Documents, whether now or distinction among them.
(c) If and hereafter existing or due or to the extent that either become due. The obligations of the Borrowers shall fail to make any payment with respect to any of under the Obligations as Loan Documents may be enforced by the Administrative Agent and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid against any Borrower or all Borrowers in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default manner or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted order selected by the Administrative Agent or the Required Lenders in their sole discretion. Each Borrower hereby irrevocably waives (i) any rights of subrogation and (ii) any rights of contribution, indemnity or reimbursement, in each case, that it may acquire or that may arise against any other Borrower due to any payment or performance made under this Agreement, in each case until all Obligations shall have been fully satisfied. Without limiting the foregoing provisions of this Section 2.14, each. Borrower acknowledges and agrees that:
(a) its obligations under this Agreement shall remain enforceable against it even though such obligations may be unenforceable or not allowable against any other Borrower due to the existence of an insolvency proceeding involving any other Borrower or otherwise;
(b) its obligations under this Agreement are independent of the obligations of any other Borrower, and a separate action or actions may be brought and prosecuted against it in respect of such obligations irrespective of whether any action is brought against any other Borrower or any other Borrower is joined in any such action or actions;
(c) it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of this Agreement or any agreement or instrument relating thereto in respect of any other Borrower;
(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of any other Borrower under or in respect of this Agreement, or any other amendment or waiver of the obligations hereunderor any consent to departure from this Agreement, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in other Borrower;
(iii) any change, restructuring or termination of the performance structure or satisfaction existence of any termother Borrower;
(iv) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other Person with respect to any obligations of the Borrowers under this Agreement; or
(v) any other circumstance (including any statute of limitations but other than the Obligations having been fully satisfied) or any existence of or reliance on any representation by any other Person that might otherwise constitute a defense available to, covenant, condition or provision of this Credit Agreementa discharge of, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of ;
(d) its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder Agreement shall continue in full force and effect notwithstanding to be effective or be reinstated, as the case may be, if at any absorption, merger, amalgamation or time any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvency, bankruptcy or reorganization of either of the Borrowersany other Borrower, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect all as though such payment had not been made.; and
(ge) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).future
Appears in 2 contracts
Samples: Credit Agreement (TBS International PLC), Credit Agreement (TBS International PLC)
Joint and Several Liability of the Borrowers. (a) Each of Notwithstanding anything in this Agreement or any other Loan Document to the Borrowers is accepting contrary, each Borrower hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Administrative Agent and Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of them.
Borrower Obligations (b) as hereinafter defined). Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrower, with respect to the payment and performance of all of the Borrower Obligations (including any Borrower Obligations arising under this Credit Agreement and the other Credit DocumentsSection), it being the intention of the parties hereto that all of the Borrower Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) . If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Borrower Obligations as and when due or to perform any of the Borrower Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such ObligationBorrower Obligations. Each Subject to the terms and conditions hereof, the Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 constitute the absolute and unconditional, full recourse obligations Borrower Obligations of such each Borrower, enforceable against it each such Person to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to irrespective of the extent permitted by lawvalidity, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default binding effect or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms enforceability of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of the other Loan Documents or any action at any time taken or omitted by the Administrative Agent or the Lenders under or other circumstances whatsoever. As used in respect of any of the this Section, “Borrower Obligations” means all liabilities and obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability nature of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of owed to the Borrowers as often as occasion therefor may arise and without requirement on Agents, the part of Issuing Banks, the Lenders first to marshal or any of its claims them under any Loan Document, whether for principal, interest (including all interest and expenses accrued or incurred subsequent to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment commencement of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of insolvency proceedings with respect to the Borrowers, whether or otherwisenot such interest or expenses are allowed as a claim in such proceeding), the provisions of this Section 2.4 will forthwith be reinstated fees, expenses, indemnification or otherwise and in effect as though such payment had not been made.
whether primary, secondary, direct, indirect, contingent, fixed or otherwise (g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the including obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Codeperformance).
Appears in 2 contracts
Samples: Credit Agreement (Carlyle Group L.P.), Credit Agreement (Carlyle Group L.P.)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.06), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.06 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each of the Borrowers enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 4.06 are made for the benefit of the Agent, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agent, the Lenders 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.06 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agent or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral until such time as all of the 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 the Agent or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 2 contracts
Samples: Financing Agreement (High Voltage Engineering Corp), Financing Agreement (High Voltage Engineering Corp)
Joint and Several Liability of the Borrowers. (a) Each Borrower shall be jointly and severally liable hereunder and under each of the Borrowers Investment Documents to which it is accepting a party with respect to all obligations thereunder (the "Borrower Obligations"), regardless of which Borrower actually receives the proceeds of the Notes, or the manner in which the Company, any other Borrower or the Purchaser account therefor in their respective books and records. Notwithstanding the foregoing, (i) each Borrower's obligations and liabilities with respect tot he proceeds of the Notes which it receives, and related fees, costs and expenses, and (ii) each Borrower's obligations and liabilities arising as a result of the joint and several liability of a Borrower hereunder in consideration with respect to proceeds of the financial accommodation to Notes received by any other Borrower, together with the related fees, costs and expenses, shall be provided by separate and distinct obligations, both of which are primary obligations of such Borrower. Neither the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability of any Borrower shall be impaired or released by (A) the failure of the Purchaser, any successor or assigns thereof, or any holder of any Note or any of the Borrower Obligations to assert any claim or demand or to exercise or enforce any right, power or remedy against any Borrower or its Subsidiaries, any other Person or otherwise; (B) any extension or renewal for any period (whether or not longer than the original period) or exchange of any of the Borrower Obligations or the release or compromise of any obligations of each any nature of them.
any Person with respect thereto; (bC) Each the surrender, release or exchange of all or any part of any property securing payment, performance and/or observance of any of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, Borrower Obligations or the compromise or extension or renewal for any period (whether or not merely as a surety, but also as a co-debtor, joint and several liability with longer than the other Borrower with respect to the payment and performance original period) of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several any obligations of each any nature of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment Person 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 Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
property; (dD) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act inaction on the part of the Administrative Agent Purchaser, or any other event or condition with respect to any other Borrower, including any such action or inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such other Borrower, or a guarantor or surety of or for any or all of the LendersBorrower Obligations or (E) any other act, including, without limitation, any failure strictly matter or diligently to assert any right thing (other than payment or to pursue any remedy performance of the Borrower Obligations) which would or to comply fully with applicable laws or regulations thereunder which might, but for in the provisions absence of this Section 2.4provision, afford grounds for terminatingoperate to release, discharging discharge or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, otherwise prejudicially affect the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersBorrower.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 2 contracts
Samples: Note and Warrant Purchase Agreement (Thane International Inc), Note and Warrant Purchase Agreement (Thane International Inc)
Joint and Several Liability of the Borrowers. (a) Each Borrower agrees that it is jointly and severally liable for the obligations of the other Borrowers hereunder, including with respect to the payment of principal of and interest on all Loans and the payment of fees and indemnities and reimbursement of costs and expenses. Each Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) . Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the each other Borrower Borrower, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each all of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, the event each other Borrower will make such payment with respect to, or perform, such ObligationObligations. A breach hereof or Default or Event of Default hereunder as to any single Borrower shall constitute a breach, Default or Event of Default as to all the Borrowers. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of the Loans made under this Agreement, notice of the occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Collateral Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement Agreement, except for any demands, notices and other formalities expressly required under the benefit terms of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsthis Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent or the Lenders at any time or times in respect of any default (including any Default or Event of Default) by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent, the Collateral Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent, the Collateral Agent or the Lenders, including, without limitation, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.410.23, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.410.23, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such Borrower under this Section 2.4 10.23 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower. With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assignsother Borrowers hereunder, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other such Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect waives, until all the Obligations shall have been paid in full (other than contingent indemnification obligations that are not yet due and payable or otherwise fully satisfied. If at any timeas to which no claim has been asserted) and this Agreement shall have been terminated, any paymentright to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender.
(b) Subject to the immediately preceding sentence, to the extent that any Borrower shall be required to pay a portion of the Obligations which shall exceed the amount of Loans other extensions of credit received by such Borrower and all interest, costs, fees and expenses attributable to such Loans or other extensions of credit, then such Borrower shall be reimbursed by the other Borrowers for the amount of such excess. This paragraph is intended only to define the relative rights of Xxxxxxxxx, and nothing set forth in this paragraph is intended or shall impair the obligations of each Borrower, jointly and severally, to pay to Administrative Agent and Lenders the Obligations as and when the same shall become due and payable in accordance with the terms hereof. Notwithstanding anything to the contrary set forth in this paragraph or any other provisions of this Agreement, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by each Borrower to secure such Obligations), not constitute a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower, each Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall automatically be deemed to have been amended accordingly, nunc pro tunc.
(c) Each Borrower’s obligation to pay and perform the Obligations shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of this Agreement, or any part thereofterm or provision therein, made as to any other Borrower, (ii) any amendment or waiver of or any consent to departure from this Agreement or any other Loan Document, in respect of any other Borrower, (iii) the application of any Loan proceeds to, or the extension of any other credit for the benefit of, any other Borrower, any other Loan Party, or any of their Subsidiaries or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 10.23, constitute a legal or equitable discharge of, or provide a right of setoff against, any Borrower’s obligations hereunder, in each case other than any payment in full of the Obligations (other than contingent indemnification obligations not yet due or owing). Each of the Borrowers further agree that (i) its obligations under this Agreement and the other Loan Documents shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvency, bankruptcy or reorganization of either of the Borrowersof, or otherwisethe application of any Debtor Relief Laws to, the provisions of this Section 2.4 will forthwith be reinstated and in effect any other Borrower, all as though such payment had not been made.
made and (gii) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)future.
Appears in 2 contracts
Samples: Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting shall be jointly and severally liable hereunder and under each of the other Loan Documents with respect to all Obligations, regardless of which of the Borrowers actually receives the proceeds of the Loan or the benefit of any other extensions of credit hereunder, or the manner in which the Borrower Representative, the Borrowers, the Lenders account therefor in their respective books and records. In furtherance and not in limitation of the foregoing, (i) each Borrower’s obligations and liabilities with respect to proceeds of Loans which it receives and (ii) each Borrower’s obligations and liabilities arising as a result of the joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Borrower hereunder with respect to the payment and performance of all proceeds of the Obligations arising under this Credit Agreement and Loans received by or for the other Credit Documentsaccount of, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance other Borrowers, together with the terms thereofrelated fees, then in each such eventcosts and expenses, the other Borrower will make such payment with respect toshall be separate and distinct obligations, or perform, such Obligation. Each Borrower further agrees that it shall have no right both of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse which are primary obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoingforegoing in any manner, each all representations and warranties of Borrowers’ contained herein are made jointly and severally. For purposes of the agreements, representations, warranties and covenants contained in this Agreement and in the other Financing Documents, the knowledge of one Borrower assents shall be imputed to all Borrowers (including, without limitation, the Borrower Representative, and any consent by one Borrower (including, without limitation, the Borrower Representative) shall constitute the consent of and shall bind all Borrowers. Neither the joint and several liability of, nor the Liens granted to the Administrative Agent under the Collateral Documents by, any of the Borrowers shall be impaired or released by
(i) the failure of the Administrative Agent or any Lender, any successors or assigns thereof, or any holder of any Note or any of the Obligations to assert any claim or demand or to exercise or enforce any right, power or remedy against the Borrower Representative, any Borrower, any Subsidiary of any Borrower, any other Person, the Collateral or otherwise;
(ii) any extension or renewal for any period (whether or not longer than the original period) or exchange of any of the Obligations or the release or compromise of any obligation of any nature of any Person with respect thereto;
(iii) the surrender, release or exchange of all or any part of any property (including without limitation the Collateral) securing payment, performance and/or observance of any of the Obligations or the compromise or extension or renewal for any period (whether or not longer than the original period) of any obligations of any nature of any Person with respect to any other such property, or the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Administrative Agent and Lenders in respect thereof (including the release of any such security);
(iv) any action or delay in acting or any failure to act inaction on the part of the Administrative Agent or the Lendersany Lender, includingor any other event or condition with respect to any other Borrower, without limitationincluding any such action or inaction or other event or condition, any failure strictly which might otherwise constitute a defense available to, or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which mighta discharge of, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from a guarantor or surety of or for any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any or all of the Obligations hereunder remain unsatisfiedObligations;
(v) any other act, matter or thing (other than payment or performance of the Obligations) which would or might, in the absence of this provision, operate to release, discharge or otherwise prejudicially affect the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other Borrower.
(vi) the genuineness, validity, regularity, enforceability or any future amendment of, or change whatsoever in in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party; or
(vii) the name, membership, constitution or place insolvency of formation of either any Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment Subsidiary of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeBorrower.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 2 contracts
Samples: Second Lien Loan Agreement (TRM Corp), Credit Agreement (TRM Corp)
Joint and Several Liability of the Borrowers. (a) Each of Notwithstanding anything in this Agreement or any other Loan Documents to the Borrowers is accepting joint contrary, each Borrower, jointly and several liability hereunder severally, in consideration of the financial accommodation accommodations to be provided by the Administrative Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally Obligations, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them. The Borrowers shall be liable for all amounts due to the Administrative Agent and the Lenders under this Agreement, regardless of which Borrower actually receives the Loans, Letter of Credit Obligations or other extensions of credit hereunder or the amount of such Loans, Letter of Credit Obligations or other extensions of credit received or the manner in which the Administrative Agent or any Lender accounts for such Loans, Letter of Credit Obligations or other extensions of credit on its books and records. The Obligations of the Borrowers with respect to Loans made to one of them, and the Obligations arising as a result of the joint and several liability of one of the Borrowers hereunder with respect to Loans made to the other of the Borrowers hereunder, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all the Borrowers.
(cb) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(ec) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower (in its capacity as a joint and several obligor in respect of the Obligations of the other Borrower) hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit AgreementAgreement or the other Loan Documents, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders any Lender under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsother Loan Documents. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders any Lender at any time or times in respect of any default by either Borrower the other Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders any Lender in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrowerthe other Borrowers. Without limiting the generality of the foregoing, each Borrower (in its capacity as a joint and several obligor in respect of the obligations of the other Borrowers) assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lendersany Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.42.9, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.9, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.9 shall not be discharged except by payment or performance and then only to the extent of such payment or performance. The obligations of each Borrower under this Section 2.4 2.9 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lenderany other Borrower. The joint and several liability of the Borrowers each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any other Borrower or any of the Lenders.
(fd) Each Borrower hereby agrees that to the extent that another Borrower shall have paid more than its proportionate share of any payment made hereunder, such Borrower shall be entitled to seek and receive contribution from and against any other Borrower hereunder which has not paid its proportionate share of such payment. Each Borrower’s right of contribution shall be subject to the terms and conditions set forth in clause (g) of this Section. The provisions of this clause (d) shall in no respect limit the obligations and liabilities of any Borrower to the Administrative Agent and the other Secured Parties, and each Borrower shall remain liable to the Administrative Agent and the other Secured Parties for the full amount of the Obligations of such Borrower hereunder.
(e) The provisions of this Section 2.4 2.9 are made for the benefit of the Lenders and their successors and assignsassigns and, and subject to Section 11.2, may be enforced by them from time to time against either of the Borrowers any Borrower as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent or any Lender first to marshal any of its claims or to exercise any of its rights against the other Borrower Borrowers or to exhaust any remedies available to it against the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(gf) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Loan Documents, to the extent the obligations of either a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
(g) With respect to the Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans, Letter of Credit Obligations or other extensions of credit made to the other Borrowers hereunder, each Borrower waives, until the Obligations shall have been paid in full (other than indemnities and contingent Obligations which have not yet accrued) and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against any Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or the Lenders hereunder or under any of the 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. Upon the occurrence of any Event of Default and for so long as the same is continuing, the Administrative Agent and the Lenders may proceed directly and at once, without notice (to the extent notice is waivable under applicable law), against (i) with respect to Obligations of the Borrowers, any of them or (ii) with respect to Obligations of any Borrower, to collect and recover the full amount, or any portion of the applicable Obligations, without first proceeding against the other applicable Borrowers or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of the Borrowers or against or in payment of any or all of the Obligations.
Appears in 2 contracts
Samples: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other the Borrowers to accept joint and several liability for the obligations Obligations. Each Borrower is entering into this Agreement and the other Loan Documents and is making all representations and warranties hereunder on a joint and several basis, and all covenants, agreements and undertakings herein expressed or implied on the part of each of themBorrower shall be deemed to be joint and several.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower the Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower the Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Administrative Agent’s or such Lender’s rights of subrogation and reimbursement against such Borrower by the operation of Section 580(d) of the California Code of Civil Procedure or otherwise.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Administrative Agent, Lenders and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, Lender, successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the other Credit DocumentsObligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the extent Security Documents or otherwise. Each Borrower hereby agrees that, after the obligations occurrence and during the continuance of either any Default or Event of Default, the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall be adjudicated to be invalid collect, enforce or unenforceable for receive any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations amounts in respect of such Borrower hereunder indebtedness, such amounts shall be limited collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, Administrative Agent for application to the Bankruptcy Code)Obligations in accordance with the terms of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (K2m Group Holdings, Inc.), Credit Agreement (K2m Group Holdings, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower agrees that it is accepting joint absolutely and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreementunconditionally jointly and severally liable, as co-borrower, for the mutual benefit, directly prompt payment and indirectly, performance of all Obligations and all agreements of each of the Borrowers and in consideration of under the undertakings of each of the Borrowers to accept joint and several liability for the Loan Documents. Each Borrower agrees that its co-borrower obligations hereunder are direct obligations of each payment and not of themcollection, that such obligations shall not be discharged until the Termination Date.
(b) Each It is agreed among each Borrower, the Agent, the Issuing Banks and the Lenders that the provisions of this Section 2.25 are of the Borrowers jointly essence of the transaction contemplated by the Loan Documents and severally hereby irrevocably and unconditionally accepts, not merely as a suretythat, but also as a co-debtorfor such provisions, joint the Agent, the Issuing Banks and several the Lenders would decline to make Loans and issue Letters of Credit. Each Borrower acknowledges that its obligations pursuant to this Section are necessary to the conduct and promotion of its business, and can be expected to benefit such business.
(c) Nothing contained in this Agreement (including any provisions of this Section 2.25 to the contrary) shall limit the liability with the of (i) any Borrower to pay Loans made directly or indirectly to that Borrower (including Loans advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), LC Exposure and all accrued interest, fees, expenses and other related Obligations with respect to the payment and performance thereto, for which such Borrower shall be primarily liable for all purposes hereunder, or (ii) Holdings in respect of all of the Obligations arising under this Credit Agreement the Loan Documents. The Agent, the Issuing Banks and the other Lenders shall have the right, at any time in their discretion, to condition Loans and Letters of Credit Documents, it being upon a separate calculation of borrowing availability for each Borrower and to restrict the intention disbursement and use of the parties hereto that all the Obligations shall be the joint such Loans and several obligations Letters of each of the Borrowers without preferences or distinction among themCredit to such Borrower.
(cd) If Each Borrower has requested that the Agent and the Lenders make this credit facility available to the Borrowers on a combined basis, in order to finance the Borrowers’ business most efficiently and economically. The Borrowers’ business is a mutual and collective enterprise, and the Borrowers believe that consolidation of their credit facility will enhance the borrowing power of each Borrower and ease the administration of their relationship with the Lenders, all to the mutual advantage of the Borrowers. The Borrowers acknowledge and agree that the Agent’s and the Lenders’ willingness to extend credit to the Borrowers and to administer the Collateral on a combined basis, as set forth herein, is done solely as an accommodation to the Borrowers and at the Borrowers’ request.
(e) In any action or proceeding involving any state corporate law, or any state, Federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Borrower under this Section 2.25 or under this Agreement would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of such Borrower’s liability under this Section 2.25 or under this Agreement, then, notwithstanding any other provision of this Section 2.25 to the contrary, the amount of such liability shall, without any further action by the Borrowers or the Lenders, be automatically limited and reduced to the highest amount that is valid and enforceable as determined in such action or proceeding (such highest amount determined hereunder being the relevant Borrower’s maximum liability (“Borrower’s Maximum Liability”). This Section 2.25(e) with respect to the Borrower’s Maximum Liability of each Borrower is intended solely to preserve the rights of the Lenders to the maximum extent not subject to avoidance under applicable law, and no Borrower nor any other Person or entity shall have any right or claim under this Section with respect to such Borrower’s Maximum Liability, except to the extent necessary so that the obligations of any Borrower hereunder shall not be rendered voidable under applicable law. Each Borrower agrees that the Obligations may at any time and from time to time exceed the Borrower’s Maximum Liability of each Borrower without impairing this Section 2.25 or this Agreement, or affecting the rights and remedies of the Lenders hereunder, provided that nothing in this sentence shall be construed to increase any Borrower’s obligations hereunder beyond its Borrower’s Maximum Liability.
(f) In the event any Borrower (a “Paying Borrower”) shall make any payment or payments under this Section 2.25 or shall suffer any loss as a result of any realization upon any collateral granted by it to secure its obligations under this Agreement, each other Borrower (each a “Non-Paying Borrower”) shall contribute to such Paying Borrower an amount equal to such Non-Paying Borrower’s “Borrower Percentage” of such payment or payments made, or losses suffered, by such Paying Borrower. For purposes of this Section 2.25, each Non-Paying Borrower’s “Borrower Percentage” with respect to any such payment or loss by a Paying Borrower shall be determined as of the date on which such payment or loss was made by reference to the ratio of (i) such Non-Paying Borrower’s Maximum Liability as of such date (without giving effect to any right to receive, or obligation to make, any contribution hereunder) or, if such Non-Paying Borrower’s Maximum Liability has not been determined, the aggregate amount of all monies received by such Non-Paying Borrower from any other Borrower after the date hereof (whether by loan, capital infusion or by other means) to (ii) the aggregate Borrower’s Maximum Liability of all Borrowers hereunder (including such Paying Borrower) as of such date (without giving effect to any right to receive, or obligation to make, any contribution hereunder), or to the extent that either a Borrower’s Maximum Liability has not been determined for any Borrower, the aggregate amount of all monies received by such Borrowers from any other Borrower after the date hereof (whether by loan, capital infusion or by other means). Nothing in this provision shall affect any Borrower’s several liability for the entire amount of the Obligations (up to such Borrower’s Maximum Liability). Each of the Borrowers covenants and agrees that its right to receive any contribution under this Section 2.25 from a Non-Paying Borrower shall fail be subordinate and junior in right of payment to make any payment with respect to any the Obligations until the Termination Date. This provision is for the benefit of all of the Obligations as Agent, the Issuing Banks, the Lenders, the Borrowers and when due the Loan Guarantors and may be enforced by any one, or to perform any more, or all of the Obligations them in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedhereof.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 2 contracts
Samples: Credit Agreement (Northern Tier Energy LP), Credit Agreement (Northern Tier Energy, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting shall be jointly and severally liable hereunder and under each of the other Credit Documents with respect to all Loans and all other Obligations, regardless of which of the Borrowers actually receives the proceeds of the Loans or the benefit of any other extensions of credit hereunder, or the manner in which the Borrowers, the Administrative Agent, the Lenders or the applicable LC Issuer accounts therefore in their respective books and records. In furtherance and not in limitation of the foregoing, (i) each Borrower’s obligations and liabilities with respect to proceeds of Loans which it receives or Letters of Credit issued for its account, and related fees, costs and expenses, and (ii) each Borrower’s obligations and liabilities arising as a result of the joint and several liability of Borrowers hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Borrower with respect to proceeds of Loans received by, or Letters of Credit issued for the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documentsaccount of, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance other Borrowers, together with the terms thereofrelated fees, then in each such eventcosts and expenses, the other Borrower will make such payment with respect toshall be separate and distinct obligations, or perform, such Obligation. Each Borrower further agrees that it shall have no right both of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse which are primary obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of each of the Borrowers hereunder shall continue in full force and effect notwithstanding not be impaired or released by (A) the failure of the Administrative Agent, any absorptionLender or the applicable LC Issuer, mergerany successors or assigns thereof, amalgamation or any other change whatsoever in the name, membership, constitution or place holder of formation of either Borrower or any of the Lenders.
Obligations to assert any claim or demand or to exercise or enforce any right, power or remedy against any Borrower, any Subsidiary, any other Person or otherwise; (fB) The provisions any extension or renewal for any period (whether or not longer than the original period) or exchange of this Section 2.4 are made for the benefit any of the Lenders and their successors and assignsObligations or the release or compromise of any obligation of any nature of any Person with respect thereto; (C) the surrender, and may be enforced by them from time to time against either release or exchange of all or any part of any property securing payment, performance and/or observance of any of the Borrowers as often as occasion therefor may arise and without requirement Obligations or the compromise or extension or renewal for any period (whether or not longer than the original period) of any obligations of any nature of any Person with respect to any such property; (D) any action or inaction on the part of the Lenders first to marshal Administrative Agent, any of its claims Lender or to exercise the applicable LC Issuer, or any of its rights against the other Borrower event or to exhaust any remedies available to it against the other Borrower or to resort condition with respect to any other source Borrower, including any such action or means inaction or other event or condition, which might otherwise constitute a defense available to, or a discharge of, such Borrower, or a guarantor or surety of obtaining payment of or for any or all of the Obligations hereunder or to elect Obligations; and (E) any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid act, matter or thing (other than indefeasible payment in full or performance of the Obligations) which would or might, in the absence of this provision, operate to release, discharge or otherwise fully satisfied. If at any time, any payment, prejudicially affect the obligations of such Borrower or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeother Borrower.
(gb) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Documents, to the extent the joint obligations of either a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or federal law relating to fraudulent conveyances similar U.S. or transfersforeign statute or common law) then the obligations Obligations of such each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether foreign, federal or state and including, without limitation, the federal Bankruptcy Code).
(c) To the extent that any Borrower shall make a payment under this Section 2.20 of all or any of the Obligations (other than Loans the proceeds of which were received by such Borrower) (a “Surety Payment”) that, taking into account all other Surety Payments then previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Surety Payment in the same proportion that such Borrower’s “Allocable Amount” (as defined below) (as determined immediately prior to such Surety Payment) bore to the aggregate Allocable Amounts of each of the Borrowers as determined immediately prior to the making of such Surety Payment, then, following indefeasible payment in full in cash of the Obligations and termination of the Commitments, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Surety Payment. As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum amount of the claim that could then be recovered from such Borrower under this Section 2.20 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar U.S. or foreign statute or common law. This Section 2.20(c) is intended only to define the relative rights of Borrowers and nothing set forth in this Section 2.20(c) is intended to or shall impair the obligations of Borrowers, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including Section 2.20(a). Nothing contained in this Section 2.20(c) shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower and accrued interest, fees and expenses with respect thereto for which such Borrower shall be primarily liable. The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Borrowers to which such contribution and indemnification is owing. The rights of the indemnifying Borrowers against other Borrowers under this Section 2.20(c) shall be exercisable only upon the full and indefeasible payment of the Obligations and the termination of the Commitments.
(d) The liability of Borrowers under this Section 2.20 is in addition to and shall be cumulative with all liabilities of each Borrower to the Administrative Agent and Lenders under this Agreement and the other Credit Documents to which such Borrower is a party, without any limitation as to amount.
Appears in 2 contracts
Samples: Credit Agreement (Argo Group International Holdings, Ltd.), Credit Agreement (Argo Group International Holdings, Ltd.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.3 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.42.3, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.3, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.3 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.3 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any reconstruction or similar proceeding with respect to any Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 2.3 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal xxxxxxxx any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.3 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.3 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 2 contracts
Samples: Credit Agreement (Brandywine Realty Trust), Credit Agreement (Brandywine Realty Trust)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.06), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.06 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each of the Borrowers enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 4.06 are made for the benefit of the Agent, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agent, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.06 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agent or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral until such time as all of the Obligations (other than unasserted contingent indemnification 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 the Agent or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 2 contracts
Samples: Financing Agreement (Frederick's of Hollywood Group Inc /Ny/), Financing Agreement (Movie Star Inc /Ny/)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 1.08 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the and/or Lenders under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the and/or Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the and/or Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the and/or Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.41.08, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.41.08, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 1.08 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 1.08 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower any reconstruction or a similar proceeding with respect to any Borrower, the Administrative Agent or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower, the Administrative Agent or any of the LendersLender.
(f) The provisions of this Section 2.4 1.08 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. Without limiting the generality of the foregoing, each Borrower hereby specifically waives the benefits of N.C. Gen. Stat. §§26-7 through 26-9, inclusive, to the extent applicable. The provisions of this Section 2.4 1.08 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Loan Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
Appears in 2 contracts
Samples: Credit Agreement (Highwoods Realty LTD Partnership), Credit Agreement (Highwoods Realty LTD Partnership)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Obligations obligations arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all of the Obligations obligations hereunder and under the other Loan Documents shall be the joint and several obligations of each of the Borrowers without preferences or distinction among between them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 2.11 are made for the benefit of the Lenders and their successors and assigns, assigns and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal xxxxxxxx any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.11 shall remain in effect until all the Obligations obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.11 will forthwith be reinstated and in effect as though such payment had not been made.
(ge) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Loan Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy CodeLaw).
(f) Each Borrower hereby appoints the other Borrower to act as its agent for all purposes under this Agreement (including, without limitation, with respect to all matters relating to the borrowing, conversion, continuance and repayment of Loans and the applications for the issuance, renewal, extensions or reissuance of a Letter of Credit) and agrees that (i) any notice or communication delivered by the Administrative Agent or a Lender to a Borrower shall be deemed delivered to both Borrowers and (ii) the Administrative Agent and the Lenders may accept, and be permitted to rely on, any notice, document, instrument or agreement executed by one Borrower on behalf of the other Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Hornbeck Offshore Services Inc /La), Senior Secured Revolving Credit Agreement (Hornbeck Offshore Services Inc /La)
Joint and Several Liability of the Borrowers. (a) Each Borrower agrees that it is jointly and severally liable for the obligations of the other Borrowers hereunder, including with respect to the payment of principal of and interest on all Loans and the payment of fees and indemnities and reimbursement of costs and expenses. Each Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) . Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the each other Borrower Borrower, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each all of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, the event each other Borrower will make such payment with respect to, or perform, such ObligationObligations. A breach hereof or Default or Event of Default hereunder as to any single Borrower shall constitute a breach, Default or Event of Default as to all the Borrowers. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of the Loans made under this Agreement, notice of the occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Collateral Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement Agreement, except for any demands, notices and other formalities expressly required under the benefit terms of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsthis Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent or the Lenders at any time or times in respect of any default (including any Default or Event of Default) by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent, the Collateral Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent, the Collateral Agent or the Lenders, including, without limitation, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.410.23, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.410.23, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such Borrower under this Section 2.4 10.23 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower. With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assignsother Borrowers hereunder, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other such Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect waives, until all the Obligations shall have been paid in full (other than contingent indemnification obligations that are not yet due and payable or otherwise fully satisfied. If at any timeas to which no claim has been asserted) and this Agreement shall have been terminated, any paymentright to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender.
(b) Subject to the immediately preceding sentence, to the extent that any Borrower shall be required to pay a portion of the Obligations which shall exceed the amount of Loans other extensions of credit received by such Borrower and all interest, costs, fees and expenses attributable to such Loans or other extensions of credit, then such Borrower shall be reimbursed by the other Borrowers for the amount of such excess. This paragraph is intended only to define the relative rights of Borrowers, and nothing set forth in this paragraph is intended or shall impair the obligations of each Borrower, jointly and severally, to pay to Administrative Agent and Lenders the Obligations as and when the same shall become due and payable in accordance with the terms hereof. Notwithstanding anything to the contrary set forth in this paragraph or any other provisions of this Agreement, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by each Borrower to secure such Obligations), not constitute a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower, each Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall automatically be deemed to have been amended accordingly, nunc pro tunc.
(c) Each Borrower’s obligation to pay and perform the Obligations shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of this Agreement, or any part thereofterm or provision therein, made as to any other Borrower, (ii) any amendment or waiver of or any consent to departure from this Agreement or any other Loan Document, in respect of any other Borrower, (iii) the application of any Loan proceeds to, or the extension of any other credit for the benefit of, any other Borrower, any other Loan Party, or any of their Subsidiaries or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 10.23, constitute a legal or equitable discharge of, or provide a right of setoff against, any Borrower’s obligations hereunder, in each case other than any payment in full of the Obligations (other than contingent indemnification obligations not yet due or owing). Each of the Borrowers further agree that (i) its obligations under this Agreement and the other Loan Documents shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvency, bankruptcy or reorganization of either of the Borrowersof, or otherwisethe application of any Debtor Relief Laws to, the provisions of this Section 2.4 will forthwith be reinstated and in effect any other Borrower, all as though such payment had not been made.
made and (gii) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)future.
Appears in 2 contracts
Samples: Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.)
Joint and Several Liability of the Borrowers. (a) Subject to Section 2.8(b):
(i) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(bii) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(ciii) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(div) The obligations of each Borrower under the provisions of this Section 2.4 2.8 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstances whatsoever.
(ev) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Credit Agreement), notice of any action at any time taken or omitted by the Administrative Agent or the Lenders Banks under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders Banks at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders Banks in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the LendersBank, 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 2.42.8, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.8, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.8 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.8 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any reconstruction or similar proceeding with respect to any Borrower or a Lenderany Bank. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the LendersBank.
(fvi) The provisions of this Section 2.4 2.8 are made for the benefit of the Lenders Agents, the Issuing Banks, the Swingline Bank, the Banks and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Bank first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.8 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.8 will forthwith be reinstated and in effect as though such payment had not been made.
(gb) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Documents, to the extent (i) the obligations of either each Borrower under this Section 2.8 shall be adjudicated limited to be invalid an aggregate amount equal to the largest amount that would not render its obligations under this Section 2.8 subject to avoidance under Section 548 of the Bankruptcy Code or unenforceable for any reason (including, without limitation, because comparable provisions of any applicable state or federal law relating to fraudulent conveyances or transferslaw, (ii) then the obligations of such no Foreign Borrower hereunder shall be limited obligated with respect to any Obligations of any U.S. Borrower, (iii) the maximum amount that is permissible Obligations owed by the Foreign Borrowers shall be several and not joint with the Obligations of the U.S. Borrowers and the Guarantors, and (iv) no Foreign Borrower shall be liable for any Obligations of any U.S. Borrower or any Guarantor, and all amounts required to be paid by any Foreign Borrower under applicable law (whether federal this Credit Agreement or state any other Credit Document shall be applied only to Obligations of Foreign Borrowers and including, without limitation, the Bankruptcy Code)shall not be applied to any Obligations of any U.S. Borrower or any Guarantor.
Appears in 2 contracts
Samples: Credit Agreement (Owens & Minor Inc/Va/), Credit Agreement (Owens & Minor Inc/Va/)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 1.08 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the and/or Lenders under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the and/or Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the and/or Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the and/or Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.41.08, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.41.08, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 1.08 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 1.08 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower any reconstruction or a similar proceeding with respect to any Borrower, the Administrative Agent or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower, the Administrative Agent or any of the LendersLender.
(f) The provisions of this Section 2.4 1.08 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. Without limiting the generality of the foregoing, each Borrower hereby specifically waives the benefits of N.C. Gen. Stat. §§26-7 through 26-9, inclusive, to the extent applicable. The provisions of this Section 2.4 1.08 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeFully Satisfied.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Loan Documents, to the extent the obligations of either each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfersother than the Principal Borrower) then the obligations of such Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
Appears in 2 contracts
Samples: Credit Agreement (Government Properties Income Trust), Credit Agreement (Government Properties Income Trust)
Joint and Several Liability of the Borrowers. (a) Each of Notwithstanding anything in this Agreement or any other Loan Documents to the Borrowers is accepting joint contrary, each Borrower, jointly and several liability hereunder severally, in consideration of the financial accommodation accommodations to be provided by the Administrative Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally Obligations, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them. The Borrowers shall be liable for all amounts due to the Administrative Agent and the Lenders under this Agreement, regardless of which Borrower actually receives the Loans or Letter of Credit Obligations hereunder or the amount of such Revolving Loans received or the manner in which the Administrative Agent or any Lender accounts for such Loans, Letter of Credit Obligations or other extensions of credit on its books and records. The Obligations of the Borrowers with respect to Revolving Loans made to one of them, and the Obligations arising as a result of the joint and several liability of one of the Borrowers hereunder with respect to Revolving Loans made to the other of the Borrowers hereunder, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all the Borrowers.
(cb) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(ec) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower (in its capacity as a joint and several obligor in respect of the obligations of the other Borrower) hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit AgreementAgreement or the other Loan Documents, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders any Lender under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsother Loan Documents. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders any Lender at any time or times in respect of any default by either Borrower the other Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders any Lender in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrowerthe other Borrowers. Without limiting the generality of the foregoing, each Borrower (in its capacity as a joint and several obligor in respect of the obligations of the other Borrowers) assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lendersany Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.42.9, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.9, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.9 shall not be discharged except by payment or performance and then only to the extent of such payment or performance. The obligations of each Borrower under this Section 2.4 2.9 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lenderany other Borrower. The joint and several liability of the Borrowers each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any other Borrower or any of the Lenders.
(fd) The provisions of this Section 2.4 2.9 are made for the benefit of the Lenders and their successors and assigns, and subject to Section 11.2, may be enforced by them from time to time against either of the Borrowers any Borrower as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent or any Lender first to marshal any of its claims or to exercise any of its rights against the other Borrower Borrowers or to exhaust any remedies available to it against the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(ge) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Loan Documents, to the extent the obligations of either a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the United States Bankruptcy Code).
(f) With respect to the Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans, Letter of Credit Obligations or other extensions of credit made to the other Borrowers hereunder, each Borrower waives, until the Obligations shall have been paid in full (other than indemnities and contingent Obligations which have not yet accrued) and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against any Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or the Lenders hereunder or under any of the 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. Upon the occurrence of any Event of Default and for so long as the same is continuing, the Administrative Agent and the Lenders may proceed directly and at once, without notice (to the extent notice is waivable under applicable law), against (i) with respect to Obligations of the Borrowers, any of them or (ii) with respect to Obligations of any Borrower, to collect and recover the full amount, or any portion of the applicable Obligations, without first proceeding against the other applicable Borrowers or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of Borrower(s) or against or in payment of any or all of the Obligations.
Appears in 2 contracts
Samples: Loan and Security Agreement (Mohawk Industries Inc), Loan and Security Agreement (Mohawk Industries Inc)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the The obligations of each Borrower hereunder and under the other Loan Documents to which any Borrower is a party shall be joint and several, and, accordingly, each Borrower confirms that it is liable for the full amount of themthe Obligations, regardless of whether incurred by such Borrower or any other Borrower.
(b) Each of the Borrowers jointly Borrower represents 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 Borrower with respect warrants to the payment and performance of all of Administrative Agent, the Obligations arising under this Credit Agreement Issuing Bank and the Lenders that the Borrowers, though separate legal entities, are mutually dependent on each other Credit Documents, in the conduct of their respective businesses as an integrated operation and have determined it being to be in their mutual best interests to obtain financing from the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among themLenders through their collective efforts.
(c) If and to the extent that either None of the Borrowers Administrative Agent, the Issuing Bank or any Lender shall fail be obligated or required before enforcing any Loan Document against a Borrower: (a) to pursue any right or remedy it may have against any other Borrower or any other Person or commence any suit or other proceeding against any other Borrower or any other Person in any court or other tribunal; (b) to make any payment with respect claim in a liquidation or bankruptcy of any other Borrower or any other Person; or (c) to make demand of any other Borrower or any other Person or to enforce or seek to enforce or realize upon any collateral security held by the Administrative Agent, the Issuing Bank or any Lender which may secure 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 Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations It is the intent of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent Administrative Agent, the Issuing Bank and the Lenders that in any proceeding of its properties and assets.
(ethe types described in Sections 10.1.(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement10.1.(f), or of any presentment or demand for any payment under this Credit Agreementa Borrower’s maximum obligation hereunder shall equal, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligationsbut not exceed, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder maximum amount which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, would not otherwise cause the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid avoidable or unenforceable for any reason (includingagainst such Borrower in such proceeding as a result of Applicable Law, including without limitation, because (i) Section 548 of the Bankruptcy Code and (ii) any applicable state fraudulent transfer or federal law relating to fraudulent conveyances conveyance act or transfers) then statute applied in such proceeding, whether by virtue of Section 544 of the Bankruptcy Code or otherwise. The Applicable Laws under which the possible avoidance or unenforceability of the obligations of such Borrower hereunder shall be limited determined in any such proceeding are referred to as the “Avoidance Provisions”. Accordingly, to the extent that the obligations of a Borrower hereunder would otherwise be subject to avoidance under the Avoidance Provisions, the maximum Obligations for which such Borrower shall be liable hereunder shall be reduced to that amount which, as of the time any of the Obligations are deemed to have been incurred under the Avoidance Provisions, would not cause the obligations of such Borrower hereunder, to be subject to avoidance under the Avoidance Provisions. This subsection is intended solely to preserve the rights of the Administrative Agent, the Issuing Bank and the Lenders hereunder to the maximum extent that would not cause the obligations of any Borrower hereunder to be subject to avoidance under the Avoidance Provisions, and no Borrower or any other Person shall have any right or claim under this Section that would not otherwise be available to such Person under the Avoidance Provisions.
(e) To the extent that any Borrower shall be required hereunder to pay any portion of the Obligations exceeding the greater of (a) the amount of the value actually received by such Borrower and its Subsidiaries from the Loans and other Obligations and (b) the amount such Borrower would otherwise have paid if such Borrower had paid the aggregate amount of Obligations (excluding the amount paid by any other Person) in the same proportion as such Borrower’s net worth on the date enforcement is sought hereunder bears to the aggregate net worth of all of the Borrowers on such date, then such Borrower shall be reimbursed by each other Borrower for the amount of such excess pro rata, based on the respective net worth of such other Borrower on such date.
(f) Each Borrower assumes all responsibility for being and keeping itself informed of the financial condition of the other Borrowers, and of all other circumstances bearing upon the risk of nonpayment of any of the Obligations and the nature, scope and extent of the risks that is permissible under applicable law (whether federal or state such Borrower assumes and includingincurs hereunder, without limitationand agrees that none of the Administrative Agent, the Bankruptcy Code)Issuing Bank or any Lender shall have any duty whatsoever to advise any Borrower of information regarding such circumstances or risks.
Appears in 2 contracts
Samples: Credit Agreement (Sl Green Operating Partnership, L.P.), Credit Agreement (Sl Green Operating Partnership, L.P.)
Joint and Several Liability of the Borrowers. (a) Each of Notwithstanding anything in this Agreement or any other Loan Documents to the Borrowers is accepting joint contrary, each Borrower, jointly and several liability hereunder severally, in consideration of the financial accommodation accommodations to be provided by the Administrative Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally Obligations, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them. The Borrowers shall be liable for all amounts due to the Administrative Agent and the Lenders under this Agreement, regardless of which Borrower actually receives the Loans, Letter of Credit Obligations or other extensions of credit hereunder or the amount of such Loans, Letter of Credit Obligations or other extensions of credit received or the manner in which the Administrative Agent or any Lender accounts for such Loans, Letter of Credit Obligations or other extensions of credit on its books and records. The Obligations of the Borrowers with respect to Loans made to one of them, and the Obligations arising as a result of the joint and several liability of one of the Borrowers hereunder with respect to Loans made to the other of the Borrowers hereunder, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all the Borrowers.
(cb) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(ec) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower (in its capacity as a joint and several obligor in respect of the obligations of the other Borrower) hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit AgreementAgreement or the other Loan Documents, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders any Lender under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsother Loan Documents. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders any Lender at any time or times in respect of any default by either Borrower the other Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders any Lender in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrowerthe other Borrowers. Without limiting the generality of the foregoing, each Borrower (in its capacity as a joint and several obligor in respect of the obligations of the other Borrowers) assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lendersany Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.42.9, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.9, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.9 shall not be discharged except by payment or performance and then only to the extent of such payment or performance. The obligations of each Borrower under this Section 2.4 2.9 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lenderany other Borrower. The joint and several liability of the Borrowers each Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any other Borrower or any of the Lenders.
(fd) Each Borrower hereby agrees that to the extent that another Borrower shall have paid more than its proportionate share of any payment made hereunder, such Borrower shall be entitled to seek and receive contribution from and against any other Borrower hereunder which has not paid its proportionate share of such payment. Each Borrower’s right of contribution shall be subject to the terms and conditions set forth in clause (g). The provisions of this clause (d) shall in no respect limit the obligations and liabilities of any Borrower to the Administrative Agent and the other Secured Parties, and each Borrower shall remain liable to the Administrative Agent and the other Secured Parties for the full amount of the Obligations of such Borrower hereunder.
(e) The provisions of this Section 2.4 2.9 are made for the benefit of the Lenders and their successors and assigns, and subject to Section 11.2, may be enforced by them from time to time against either of the Borrowers any Borrower as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent or any Lender first to marshal any of its claims or to exercise any of its rights against the other Borrower Borrowers or to exhaust any remedies available to it against the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(gf) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Loan Documents, to the extent the obligations of either a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the United States Bankruptcy Code).
(g) With respect to the Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans, Letter of Credit Obligations or other extensions of credit made to the other Borrowers hereunder, each Borrower waives, until the Obligations shall have been paid in full (other than indemnities and contingent Obligations which have not yet accrued) and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against any Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or the Lenders hereunder or under any of the 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. Upon the occurrence of any Event of Default and for so long as the same is continuing, the Administrative Agent and the Lenders may proceed directly and at once, without notice (to the extent notice is waivable under applicable law), against (i) with respect to Obligations of the Borrowers, any of them or (ii) with respect to Obligations of any Borrower, to collect and recover the full amount, or any portion of the applicable Obligations, without first proceeding against the other applicable Borrowers or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent and the Lenders shall be under no obligation to marshal any assets in favor of Borrower(s) or against or in payment of any or all of the Obligations.
Appears in 2 contracts
Samples: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Joint and Several Liability of the Borrowers. (a) Each Borrower agrees that it is jointly and severally liable for the obligations of the Borrowers other Borrower under the Loan Documents, including with respect to the payment of principal of and interest on all Loans and the payment of fees and indemnities and reimbursement of costs and expenses. Each Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) . Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Borrower Borrower, with respect to the payment and performance of all of the Obligations arising obligations under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations such obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among between them.
(c) . If and to the extent that either of the Borrowers Borrower shall fail to make any payment with respect to any of the Obligations obligations under the Loan Documents as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, event the other Borrower will make such payment with respect to, or perform, such Obligationobligations. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of the Loans made under this Agreement, notice of the occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Collateral Agent or the Lenders under or in respect of any of the obligations hereunderunder the Loan Documents, any requirement of diligence or to mitigate damages and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement Agreement, except for any demands, notices and other formalities expressly required under the benefit terms of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsthis Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligationsobligations under the Loan Documents, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent or the Lenders at any time or times in respect of any default (including any Default or Event of Default) by either the other Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent, the Collateral Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent, the Collateral Agent or the Lenders, including, without limitation, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.410.22, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.410.22, it being the intention of each Borrower that, so long as any of the Obligations hereunder obligations under the Loan Documents remain unsatisfied, the obligations of such Borrower under this Section 2.4 10.22 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower the other Borrower. With respect to each Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the Lenders.
(f) The provisions of this Section 2.4 are made for other Borrowers hereunder, such Borrower waives, until the benefit of obligations under the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations Loan Documents shall have been paid in full in cash (other than contingent indemnification obligations that are not yet due and payable or otherwise fully satisfied. If at any timeas to which no claim has been asserted) and this Agreement shall have been terminated, any paymentright to enforce any right of subrogation or any remedy which the Administrative Agent, the Collateral Agent and/or any Lender now has or may hereafter have against the other Borrower, any endorser or any guarantor of all or any part of the obligations under the Loan Documents, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent and/or any Lender to secure payment of the obligations under the Loan Documents or any other liability of the Borrowers to the Administrative Agent, the Collateral Agent and/or any Lender.
(b) Subject to the immediately preceding sentence, to the extent that either Borrower shall be required to pay a portion of the obligations under the Loan Documents which shall exceed the amount of Loans other extensions of credit received by such Borrower and all interest, costs, fees and expenses attributable to such Loans or other extensions of credit, then such Borrower shall be reimbursed by the other Borrower for the amount of such excess. This paragraph is intended only to define the relative rights of Xxxxxxxxx, and nothing set forth in this paragraph is intended or shall impair the obligations of each Borrower, jointly and severally, to pay to Administrative Agent, the Collateral Agent and Lenders the obligations under the Loan Documents as and when the same shall become due and payable in accordance with the terms hereof. Notwithstanding anything to the contrary set forth in this paragraph or any other provisions of this Agreement, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the obligations under the Loan Documents of the other Borrower (and any Lien granted by each Borrower to secure such obligations), not constitute a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower, the Administrative Agent, the Collateral Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by either Borrower in respect of the obligations under the Loan Documents of the other Borrower (or any Liens granted by such Borrower to secure such obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall automatically be deemed to have been amended accordingly, nunc pro tunc.
(c) Each Borrower’s obligation to pay and perform the obligations under the Loan Documents shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of this Agreement, or any part thereofterm or provision therein, made as to the other Borrower, (ii) any amendment or waiver of or any consent to departure from this Agreement or any other Loan Document, in respect of the other Borrower, (iii) the application of any Loan proceeds to, or the extension of any other credit for the benefit of, the other Borrower, any other Loan Party, or any of their Subsidiaries or (iv) any other event or circumstance whatsoever, whether or not similar to any of the Obligations foregoing, that might, but for the provisions of this Section 10.22, constitute a legal or equitable discharge of, or provide a right of setoff against, either Xxxxxxxx’s obligations hereunder, in each case other than any payment in full of such obligations (other than contingent indemnification obligations not yet due or owing). Each of the Borrowers further agree that (i) its obligations under this Agreement and the other Loan Documents shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvency, bankruptcy or reorganization of either of the Borrowersof, or otherwisethe application of any Debtor Relief Laws to, the provisions of this Section 2.4 will forthwith be reinstated and in effect other Borrower, all as though such payment had not been made.
made and (gii) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)future.
Appears in 2 contracts
Samples: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.)
Joint and Several Liability of the Borrowers. Each of the Borrowers, by signing this Agreement hereby agrees as follows:
(a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders Secured Parties under this Credit Agreementthe Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them. For the avoidance of doubt and in furtherance of the foregoing, in the event that any Borrower is released from its Obligations hereunder for any reason (including in connection with a sale of the Equity Interests or all or substantially all of the assets of such Borrower accompanied by a release of such Person of its obligations as Guarantor pursuant to the applicable provisions of the Guarantee Agreement in circumstances permitted by and in accordance with the terms thereof and hereof), each of the other Borrowers shall be liable as principal for the full amount of such Obligations.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower will make such make, without duplication, payment of any unpaid amount with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower under hereunder constitute the provisions of this Section 2.4 constitute absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each such Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to in this Agreement or the extent permitted by lawother Loan Documents, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans or the Letter of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders any Secured Party under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent in this Agreement or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLoan Documents).
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders Each Borrower agrees that if any certificate is executed and their successors and assigns, and may be enforced delivered by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims one or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either more of the Borrowers, but not the other Borrower, such certificate may be relied upon by the Secured Parties, and shall bind all of the Borrowers, as if it were executed by all of them. Any representation herein made “to Borrowers’ knowledge” or otherwisethe like, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision means to the contrary contained herein or in any knowledge of any, but not necessarily all, of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Borrowers.
Appears in 2 contracts
Samples: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)
Joint and Several Liability of the Borrowers. (a) Each 2.6.1 Notwithstanding anything in this Agreement or any other Investment Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Investment Documents in consideration of the financial accommodation accommodations to be provided by the Lenders Purchaser under this Credit AgreementAgreement and the other Investment Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.6), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 2.6 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Borrower to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to irrespective of the extent permitted by lawvalidity, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default regularity or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms enforceability of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Investment Documents or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenderscircumstances whatsoever.
(f) 2.6.2 The provisions of this Section 2.4 2.6 are made for the benefit of the Lenders Purchaser and their its successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Purchaser 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.6 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied.
2.6.3 Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Investment Documents, any payments made by it to the Purchaser 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. If at Any claim which any Borrower may have against any other Borrower with respect to any payments to the Purchaser hereunder or under any other Investment 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.
2.6.4 The liability of each Borrower hereunder shall be irrevocable, absolute and unconditional irrespective of, and each Borrower hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Investment Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any paymentother term of, all or any of the Obligations, or any part thereofother amendment or waiver of or any consent to departure from any Investment Document, including, without limitation, any increase in the Obligations resulting from the extension of additional credit to any Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Obligations;
(d) the existence of any claim, set-off, defense or other right that any Borrower may have at any time against any Person, including, without limitation, the Purchaser;
(e) any change, restructuring or termination of the corporate, limited liability company or partnership structure or existence of any Borrower; or
(f) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Purchaser that might otherwise constitute a defense available to, or a discharge of, any Borrower or any other guarantor or surety.
2.6.5 Each Borrower hereby waives (a) promptness and diligence, (b) notice of acceptance and any other notice with respect to any of the Obligations and this Section 2.6 and any requirement that the Purchaser exhaust any right or take any action against any Borrower or any other Person or any Collateral, (c) any right to compel or direct the Purchaser to seek payment or recovery of any amounts owed under this Section 2.6 from any one particular fund or source or to exhaust any right or take any action against any other Borrower, any other Person or any Collateral, (d) any requirement that the Purchaser protect, secure, perfect or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any Borrower, any other Person or any Collateral, and (e) any other defense available to any Borrower. Each Borrower agrees that the Purchaser shall have no obligation to marshal any assets in favor of any Guarantor or against, or in payment of, any or all of the Obligations. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated herein and that the waiver set forth in this Section 2.6 is knowingly made in respect contemplation of such benefits. Each Borrower hereby waives any right to revoke this Section 2.6, and acknowledges that this Section 2.6 is continuing in nature and applies to all Obligations, whether existing now or in the future. This Section 2.6 shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders Purchaser, or any other Person upon the insolvency, bankruptcy or reorganization of either of the Borrowers, any Borrower or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect all as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 2 contracts
Samples: Securities Purchase and Sale Agreement (Vintage Capital Group, LLC), Securities Purchase and Sale Agreement (Caprius Inc)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 1.08 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the and/or Lenders under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the and/or Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the and/or Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the and/or Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.41.08, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.41.08, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 1.08 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 1.08 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower any reconstruction or a similar proceeding with respect to any Borrower, the Administrative Agent or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower, the Administrative Agent or any of the LendersLender.
(f) The provisions of this Section 2.4 1.08 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. Without limiting the generality of the foregoing, each Borrower hereby specifically waives the benefits of N.C. Gen. Stat. §§26-7 through 26-9, inclusive, to the extent applicable. The provisions of this Section 2.4 1.08 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeFully Satisfied.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Loan Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
Appears in 2 contracts
Samples: Credit Agreement (Highwoods Realty LTD Partnership), Credit Agreement (Highwoods Realty LTD Partnership)
Joint and Several Liability of the Borrowers. (a) Each of Notwithstanding anything in this Agreement or any other Loan Document to the Borrowers is accepting contrary, each Borrower hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Administrative Agent and Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of them.
Borrower Obligations (b) as hereinafter defined). Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrower, with respect to the payment and performance of all of the Borrower Obligations (including any Borrower Obligations arising under this Credit Agreement and the other Credit DocumentsSection), it being the intention of the parties hereto that all of the Borrower Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) . If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Borrower Obligations as and when due or to perform any of the Borrower Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such ObligationBorrower Obligations. Each Subject to the terms and conditions hereof, the Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 constitute the absolute and unconditional, full recourse obligations Borrower Obligations of such each Borrower, enforceable against it each such Person to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to irrespective of the extent permitted by lawvalidity, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default binding effect or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms enforceability of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of the other Loan Documents or any action at any time taken or omitted by the Administrative Agent or the Lenders under or other circumstances whatsoever. As used in respect of any of the this Section, “Borrower Obligations” means all liabilities and obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability nature of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of owed to the Borrowers as often as occasion therefor may arise and without requirement on the part of Administrative Agent, the Lenders first to marshal or any of its claims them under any Loan Document, whether for principal, interest, premium (including all interest, premium and expenses accrued or incurred subsequent to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment commencement of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of insolvency proceedings with respect to the Borrowers, whether or otherwisenot such interest, the provisions of this Section 2.4 will forthwith be reinstated premium or expenses are allowed as a claim in such proceeding), fees, expenses, indemnification or otherwise and in effect as though such payment had not been made.
whether primary, secondary, direct, indirect, contingent, fixed or otherwise (g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the including obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Codeperformance).
Appears in 2 contracts
Samples: Credit Agreement (Chicken Soup for the Soul Entertainment, Inc.), Credit Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower the Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.15), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 2.15 constitute full recourse obligations of each of such Borrower, the Borrowers enforceable against it each such Borrower to the full extent of its properties and assets.
(e) Except as otherwise expressly provided hereinin this Agreement, each of the Borrowers, to the fullest extent permitted by applicable law, each Borrower hereby waives notice of acceptance of its joint and several liability and liability, notice of all any Loans or other extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices (other than those required pursuant to the terms of this Agreement or the Loan Documents) and other formalities of every kind in connection with this Credit Agreement and Agreement. Each Borrower, to the benefit fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any laws that exonerate valuation, stay, moratorium law or limit other similar law now or hereafter in effect, any right to require the liability marshaling of co-borrowers or sureties assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations and all suretyship defenses provided by those lawsgenerally. Each Borrower of the Borrowers, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either Borrowerany of the Borrowers. Without limiting the generality of the foregoing, each Borrower of the Borrowers assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lenders with respect to the Lenders, failure by any of the Borrowers to comply with any of its respective Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.42.15, afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.15, it being the intention of each Borrower of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such Borrower the Borrowers under this Section 2.4 2.15 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower of the Borrowers under this Section 2.4 2.15 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction re-construction or similar proceeding with respect to either Borrower any of the Borrowers, the Administrative Agent or a Lenderthe Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Borrowers, the Administrative Agent or the Lenders.
(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of the benefit received by such Borrower in respect of the extensions of credit under this Agreement (the “Benefit Amount”), then such Borrower, after the payment in full in cash, of all of the Obligations, shall be entitled to recover from each other Borrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to the total Benefit Amount received by all the Borrowers, and the right to such recovery shall be deemed to be an asset and property of such Borrower so funding; provided, that each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other the Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative Agent with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been irrevocably paid in full in cash, the Aggregate Commitments have been terminated and no Letters of Credit remain outstanding. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lenders or the Administrative Agent hereunder or under any other Loan Document are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor.
(g) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrences and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders (in accordance with each such Lender’s Applicable Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(h) The provisions of this Section 2.4 2.15 are made for the benefit of the Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against either any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent or the Lenders first to marshal any of its their claims or to exercise any of its their rights against the any other Borrower or to exhaust any remedies available to it them against the any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.15 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of either any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this Section 2.4 2.15 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gi) Notwithstanding any provision to It is the contrary contained herein or in any intention and agreement of the other Credit Documents, to Borrowers and the extent Lenders that the obligations of either Borrower the Borrowers under this Agreement shall be adjudicated valid and enforceable against each Borrower to the maximum extent permitted by applicable law. Accordingly, if any provision of this Agreement creating any obligation of the Borrowers in favor of the Administrative Agent and the Lenders shall be declared to be invalid or unenforceable for in any reason respect or to any extent, it is the stated intention and agreement of the Borrowers, the Administrative Agent and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Administrative Agent and the Lenders created by other provisions of this Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Administrative Agent and the Lenders may be otherwise entitled to collect from the Borrowers under this Agreement to be in excess of those permitted under any law (includingincluding any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers’ obligations under this Agreement, without limitationit is the stated intention and agreement of the Borrowers and the Administrative Agent and the Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Administrative Agent and the Lenders from the Borrowers.
(j) Notwithstanding anything contained herein, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder under this Section 2.15 at any time shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any other Debt Relief Laws.
Appears in 2 contracts
Samples: Credit Agreement (Waste Connections, Inc.), Credit Agreement (Waste Connections, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower agrees that it is accepting joint absolutely and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreementunconditionally jointly and severally liable, as co-borrower, for the mutual benefit, directly prompt payment and indirectly, performance of all Obligations and all agreements of each of the Borrowers under the Loan Documents. Each Borrower agrees that its co-borrower obligations hereunder are direct obligations of payment and in consideration not of collection, that such obligations shall not be discharged until Full Payment of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each It is agreed among each Borrower, the Agent, the Co-Collateral Agents, the Issuing Banks and the Lenders that the provisions of this Section 2.25 are of the Borrowers jointly essence of the transaction contemplated by the Loan Documents and severally hereby irrevocably and unconditionally accepts, not merely as a suretythat, but also as a cofor such provisions, the Agent, the Co-debtorCollateral Agents, joint the Issuing Banks and several liability with the other Lenders would decline to make Loans and issue Letters of Credit. Each Borrower with respect acknowledges that its obligations pursuant to this Section are necessary to the payment conduct and performance promotion of all of the Obligations arising under this Credit Agreement its business, and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall can be the joint and several obligations of each of the Borrowers without preferences or distinction among themexpected to benefit such business.
(c) If Nothing contained in this Agreement (including any provisions of this Section 2.25 to the contrary) shall limit the liability of (i) any Borrower to pay Loans made directly or indirectly to that Borrower (including Loans advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), LC Exposure and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Borrower shall be primarily liable for all purposes hereunder, or (ii) the Company in respect of all of the Revolving Facility Obligations under the Loan Documents. The Agent, the Co-Collateral Agents, the Issuing Banks and the Lenders shall have the right, at any time in their discretion, to condition Loans and Letters of Credit upon a separate calculation of borrowing availability for each Borrower and to restrict the disbursement and use of such Loans and Letters of Credit to such Borrower.
(d) Each Borrower has requested that the Agent and the Lenders make this credit facility available to the Borrowers on a combined basis, in order to finance the Borrowers’ business most efficiently and economically. The Borrowers’ business is a mutual and collective enterprise, and the Borrowers believe that consolidation of their credit facility will enhance the borrowing power of each Borrower and ease the administration of their relationship with the Lenders, all to the mutual advantage of the Borrowers. The Borrowers acknowledge and agree that the Agent’s and the Lenders’ willingness to extend credit to the Borrowers and to administer the Collateral on a combined basis, as set forth herein, is done solely as an accommodation to the Borrowers and at the Borrowers’ request.
(e) In any action or proceeding involving any state corporate law, or any state, Federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Borrower under this Section 2.25 or under this Agreement would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of such Borrower’s liability under this Section 2.25 or under this Agreement, then, notwithstanding any other provision of this Section 2.25 to the contrary, the amount of such liability shall, without any further action by the Borrowers or the Lenders, be automatically limited and reduced to the highest amount that is valid and enforceable as determined in such action or proceeding (such highest amount determined hereunder being the relevant Borrower’s maximum liability (“Borrower’s Maximum Liability”). This Section 2.25(e) with respect to the Borrower’s Maximum Liability of each Borrower is intended solely to preserve the rights of the Lenders to the maximum extent not subject to avoidance under applicable law, and no Borrower nor any other Person or entity shall have any right or claim under this Section with respect to such Borrower’s Maximum Liability, except to the extent necessary so that the obligations of any Borrower hereunder shall not be rendered voidable under applicable law. Each Borrower agrees that the Obligations may at any time and from time to time exceed the Borrower’s Maximum Liability of each Borrower without impairing this Section 2.25 or this Agreement, or affecting the rights and remedies of the Lenders hereunder, provided, that nothing in this sentence shall be construed to increase any Borrower’s obligations hereunder beyond its Borrower’s Maximum Liability.
(f) In the event any Borrower (a “Paying Borrower”) shall make any payment or payments under this Section 2.25 or shall suffer any loss as a result of any realization upon any collateral granted by it to secure its obligations under this Agreement, each other Borrower (each a “Non-Paying Borrower”) shall contribute to such Paying Borrower an amount equal to such Non-Paying Borrower’s “Borrower Percentage” of such payment or payments made, or losses suffered, by such Paying Borrower. For purposes of this Section 2.25, each Non-Paying Borrower’s “Borrower Percentage” with respect to any such payment or loss by a Paying Borrower shall be determined as of the date on which such payment or loss was made by reference to the ratio of (i) such Non-Paying Borrower’s Maximum Liability as of such date (without giving effect to any right to receive, or obligation to make, any contribution hereunder) or, if such Non-Paying Borrower’s Maximum Liability has not been determined, the aggregate amount of all monies received by such Non-Paying Borrower from any other Borrower after the date hereof (whether by loan, capital infusion or by other means) to (ii) the aggregate Borrower’s Maximum Liability of all Borrowers hereunder (including such Paying Borrower) as of such date (without giving effect to any right to receive, or obligation to make, any contribution hereunder), or to the extent that either a Borrower’s Maximum Liability has not been determined for any Borrower, the aggregate amount of all monies received by such Borrowers from any other Borrower after the date hereof (whether by loan, capital infusion or by other means). Nothing in this provision shall affect any Borrower’s several liability for the entire amount of the Obligations (up to such Borrower’s Maximum Liability). Each of the Borrowers covenants and agrees that its right to receive any contribution under this Section 2.25 from a Non-Paying Borrower shall fail be subordinate and junior in right of payment to make any payment with respect to any the Payment in Full of the Obligations as and when due or to perform any Obligations. This provision is for the benefit of all of the Obligations Agent, the Co-Collateral Agents, the Issuing Banks, the Lenders, the Borrowers and the Loan Guarantors and may be enforced by any one, or more, or all of them in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedhereof.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 2 contracts
Samples: Credit Agreement (Neiman Marcus, Inc.), Credit Agreement (Neiman Marcus, Inc.)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders Administrative Agent and the other Secured Parties under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Loan Parties and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations Obligations and of each of them.
(b) the Subsidiary Guarantors to guarantee the Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.19), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 2.19 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 2.19 are made for the benefit of the Lenders Administrative Agent, the other Secured Parties and their respective successors and assignsassigns permitted hereby, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, the other Secured Parties 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.19 shall remain in effect until all of the Obligations shall have been paid in full, including the payment in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect cash of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated each Loan and in effect as though such payment had not been madeall fees payable hereunder.
(gc) Notwithstanding Each of the Borrowers hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against the other Borrowers with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Credit Loan Documents, any payments made by it to the Administrative Agent or the other Secured Parties with respect to any of the Obligations, or any Collateral, until such time as the Obligations (other than Unliquidated Obligations) shall have been paid in full, including the payment in full in cash of each Loan and all fees payable hereunder, the payment in full in cash, or the cash collateralization or making of other arrangements pursuant to Section 9.02(d), of all Swap Obligations, and this Agreement shall have been terminated. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or any other Secured Party hereunder or under any other Loan Documents is 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 extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 2 contracts
Samples: Second Lien Term Loan Credit Agreement (Talecris Biotherapeutics Holdings Corp.), First Lien Term Loan Credit Agreement (Talecris Biotherapeutics Holdings Corp.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(m) Each entity composing the Borrower hereby irrevocably appoints CrowdStrike as the borrowing agent and attorney-in-fact for all entities composing the Borrower (the “Administrative Borrower”) which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity composing the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Borrower. Each entity composing the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower and all other notices and instructions under this Agreement and the other Loan Documents, and (b) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Credit Agreement (CrowdStrike Holdings, Inc.), Credit Agreement (CrowdStrike Holdings, Inc.)
Joint and Several Liability of the Borrowers. If, at any time there is more than one Person comprising the Borrower:
(a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.26), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.26 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect sf-5589619 of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.26 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.26, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.26 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.26 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Xxxxxxx that such Xxxxxxxx is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Xxxxxxxx’s rights of subrogation and reimbursement against any applicable Loan Party, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property.
(i) The provisions of this Section 2.4 2.26 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The sf-5589619 provisions of this Section 2.4 2.26 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.26 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.26, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(m) Each entity comprising the Borrower hereby irrevocably appoints Sprout Social, Inc., a Delaware corporation, as the borrowing agent and attorney-in-fact for all entities composing the sf-5589619 Borrower (the “Administrative Borrower”), which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity comprising the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Xxxxxxxx. Each entity comprising the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide the Administrative Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower and all other notices and instructions under this Agreement and the other Loan Documents, and (b) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders Banks under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations Indebtedness arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations Indebtedness shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 12.24 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Agreement), notice of any action at any time taken or omitted by the Administrative Agent or the Lenders Banks under or in respect of any of the obligations Indebtedness hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsIndebtedness hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders Banks at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders Banks in respect of any of the obligations Indebtedness hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Indebtedness or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the LendersBank, 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 2.412.24, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.412.24, it being the intention of each Borrower that, so long as any of the Obligations Indebtedness hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 12.24 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 12.24 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any reconstruction or similar proceeding with respect to any Borrower or a Lenderany Bank. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the LendersBank.
(f) The provisions of this Section 2.4 12.24 are made for the benefit of the Lenders Agent, Issuing Bank, Swing Line Bank, the Banks and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Bank first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder Indebtedness or to elect any other remedy. The provisions of this Section 2.4 12.24 shall remain in effect until all the Obligations Indebtedness hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Indebtedness, is rescinded or must otherwise be restored or returned by the Lenders Banks upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 12.24 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Loan Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each For purposes of this Section 3 and Section 4 below, “Borrowers” means, collectively, all of the entities comprising Borrower (as defined on the Loan Chart on the first page of this Agreement), and any Borrower shall mean any one of the entities comprising Borrower (as defined on the Loan Chart).
(b) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders Agent under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 3), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 3 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each of the Borrowers enforceable against it each such person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fc) The provisions of this Section 2.4 3 are made for the benefit of the Lenders Agent and their its successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Agent 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 3 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(d) Each of the Borrowers hereby agrees that it will not enforce any time, of its rights of contribution or subrogation against the other Borrowers with respect to any payment, liability incurred by it hereunder or under any of the other Loan Documents or any part thereof, payments made in by it to Agent with respect of to any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any Collateral until such time as all of the BorrowersObligations (other than contingent indemnification 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 Agent hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason Obligations (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Codeother than contingent indemnification Obligations).
Appears in 1 contract
Samples: Business Loan and Security Agreement (Glowpoint, Inc.)
Joint and Several Liability of the Borrowers. (a) With respect to the US Borrowers, subject to Section 2.14:
(i) Each of the US Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the US Borrowers and in consideration of the undertakings of each of the US Borrowers to accept joint and several liability for the obligations of each of them.
(bii) Each of the US Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other US Borrower with respect to the payment and performance of all of the Obligations obligations arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all of the Obligations obligations hereunder and under the other Loan Documents shall be the joint and several obligations of each of the US Borrowers without preferences or distinction among between them.
(ciii) If and to the extent that either of the US Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other US Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fiv) The provisions of this Section 2.4 2.13(a) are made for the benefit of the Lenders and their successors and assigns, assigns and may be enforced by them from time to time against either of the US Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal mxxxxxxx any of its claims or to exercise any of its rights against the other US Borrower or to exhaust any remedies available to it against the other US Borrower or to resort to any other source or means of obtaining payment of any of to the Obligations obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.13(a) shall remain in effect until all the Obligations obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the US Borrowers, or otherwise, the provisions of this Section 2.4 2.13(a) will forthwith be reinstated and an in effect as though such payment had not been made.
(gv) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Loan Documents, to the extent the obligations of either US Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such US Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
(vi) Each US Borrower hereby appoints the other US Borrower to act as its agent for all purposes under this Agreement (including, without limitation, with respect to all matters relating to the borrowing, conversion, continuance and repayment of Loans and the applications for the issuance, renewal, extensions or reissuance of a Letter of Credit) and agrees that (i) any notice or communication delivered by the US Administrative Agent or a Lender to a US Borrower shall be deemed delivered to both US Borrowers and (ii) the US Administrative Agent and the Lenders may accept, and be permitted to rely on, any notice, document, instrument or agreement executed by one US Borrower on behalf of the other US Borrower.
(b) With respect to the Canadian Borrowers:
(i) Each of the Canadian Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Canadian Borrowers and in consideration of the undertakings of each of the Canadian Borrowers to accept joint and several liability for the obligations of each of them.
(ii) Each of the Canadian Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Canadian Borrower with respect to the payment and performance of all of the obligations of the Canadian Borrowers arising under this Agreement and the other Loan Documents, it being the intention of the parties hereto that all of the obligations of the Canadian Borrowers hereunder and under the other Loan Documents shall be the joint and several obligations of each of the Canadian Borrowers without preferences or distinction between them.
(iii) If and to the extent that either of the Canadian Borrowers shall fail to make any payment with respect to any of the obligations of the Canadian Borrowers hereunder as and when due or to perform any of such obligations in accordance with the terms thereof, then in each such event, the other Canadian Borrower will make such payment with respect to, or perform, such obligation.
(iv) The provisions of this Section 2.13(b) are made for the benefit of the Lenders and their successors and assigns and may be enforced by them from time to time against either of the Canadian Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to mxxxxxxx any of its claims or to exercise any of its rights against the other Canadian Borrower or to exhaust any remedies available to it against the other Canadian Borrower or to resort to any other source or means of obtaining payment of any to the obligations of the Canadian Borrowers hereunder or to elect any other remedy. The provisions of this Section 2.13(b) shall remain in effect until all the obligations of the Canadian Borrowers hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Canadian Borrowers, or otherwise, the provisions of this Section 2.13(b) will forthwith be reinstated and in effect as though such payment had not been made.
(v) Notwithstanding any provision to the contrary contained herein or in any of the other Loan Documents, to the extent the obligations of either Canadian Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Canadian Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or provincial and including, without limitation, the Bankruptcy and Insolvency Act (Canada)).
(vi) Each Canadian Borrower hereby appoints the other Canadian Borrower to act as its agent for all purposes under this Agreement (including, without limitation, with respect to all matters relating to the borrowing, conversion, continuance and repayment of Loans and the applications for the issuance, renewal, extensions or reissuance of a Letter of Credit) and agrees that (i) any notice or communication delivered by the Administrative Agents or a Lender to a Canadian Borrower shall be deemed delivered to both Canadian Borrowers and (ii) the Administrative Agents and the Lenders may accept, and be permitted to rely on, any notice, document, instrument or agreement executed by one Canadian Borrower on behalf of the other Canadian Borrower.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Universal Compression Holdings Inc)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower agrees that it is accepting joint absolutely and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreementunconditionally jointly and severally liable, as co-borrower, for the mutual benefit, directly prompt payment and indirectly, performance of all Obligations and all agreements of each of the Borrowers and in consideration of under the undertakings of each of the Borrowers to accept joint and several liability for the Loan Documents. Each Borrower agrees that its co-borrower obligations hereunder are direct obligations of each payment and not of themcollection, that such obligations shall not be discharged until the Termination Date.
(b) Each It is agreed among each Borrower, the Agent, the Issuing Banks and the Lenders that the provisions of this Section 2.25 are of the Borrowers jointly essence of the transaction contemplated by the Loan Documents and severally hereby irrevocably and unconditionally accepts, not merely as a suretythat, but also as a co-debtorfor such provisions, joint the Agent, the Issuing Banks and several the Lenders would decline to make Loans and issue Letters of Credit. Each Borrower acknowledges that its obligations pursuant to this Section are necessary to the conduct and promotion of its business, and can be expected to benefit such business.
(c) Nothing contained in this Agreement (including any provisions of this Section 2.25 to the contrary) shall limit the liability with the of (i) any Borrower to pay Loans made directly or indirectly to that Borrower (including Loans advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), LC Exposure and all accrued interest, fees, expenses and other related Obligations with respect to the payment and performance thereto, for which such Borrower shall be primarily liable for all purposes hereunder, or (ii) Holdings in respect of all of the Obligations arising under this Credit Agreement the Loan Documents. The Agent, the Issuing Banks and the other Lenders shall have the right, at any time in their discretion, to condition Loans and Letters of Credit Documents, it being the intention upon a separate calculation of the parties hereto that all the Obligations shall be the joint and several obligations of borrowing availability for each of the Borrowers without preferences or distinction among them.
(c) If Borrower and to restrict the extent that either disbursement and use of the Borrowers shall fail such Loans and Letters of Credit 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 Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedBorrower.
(d) Each Borrower has requested that the Agent and the Lenders make this credit facility available to the Borrowers on a combined basis, in order to finance the Borrowers’ business most efficiently and economically. The obligations Borrowers’ business is a mutual and collective enterprise, and the Borrowers believe that consolidation of their credit facility will enhance the borrowing power of each Borrower under and ease the provisions administration of this Section 2.4 constitute full recourse obligations of such Borrowertheir relationship with the Lenders, enforceable against it all to the full extent mutual advantage of its properties the Borrowers. The Borrowers acknowledge and assetsagree that the Agent’s and the Lenders’ willingness to extend credit to the Borrowers and to administer the Collateral on a combined basis, as set forth herein, is done solely as an accommodation to the Borrowers and at the Borrowers’ request.
(e) Except as otherwise expressly provided herein, to the extent permitted by In any action or proceeding involving any state corporate law, each Borrower hereby waives notice or any state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of acceptance of its joint and several liability and of all extensions of credit to creditors generally, if the Borrowers by the Lenders, notice of occurrence obligations of any Default Borrower under this Section 2.25 or Event of Default (except to the extent notice is expressly required under this Agreement would otherwise be held or determined to be given pursuant to avoidable, invalid or unenforceable on account of the terms amount of this Credit Agreement), or of any presentment or demand for any payment such Borrower’s liability under this Credit Section 2.25 or under this Agreement, notice of then, notwithstanding any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementSection 2.25 to the contrary, the amount of such liability shall, without any and all other indulgences whatsoever further action by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent Borrowers or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance automatically limited and then only reduced to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum highest amount that is permissible under applicable law valid and enforceable as determined in such action or proceeding (whether federal or state and including, without limitation, such highest amount determined hereunder being the Bankruptcy Coderelevant Borrower’s maximum liability (“Borrower’s Maximum Liability”).. This
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents for the Obligations, in consideration of the financial accommodation accommodations to be provided by the Agents, the Lenders and the Bank Product Providers under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit Documents, Section 4.11) it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.11 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(eb) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders[Intentionally Omitted].
(fc) The provisions of this Section 2.4 4.11 are made for the benefit of the Lenders Agents, the Lenders, the Bank Product Providers and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Agents, the Lenders, the Bank Product Providers 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.11 shall remain in effect until all of the Obligations shall have been paid Paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeFull.
(gd) Notwithstanding Each of the Borrowers hereby agrees that it will not enforce any provision rights that it may now or hereafter acquire against any other entity constituting a Borrower or a Guarantor that arise from the existence, payment, performance or enforcement of such entity’s obligations under this Agreement and the other Loan Documents, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the contrary contained herein Agent and the Lenders against any other entity constituting a Borrower or a Guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any other entity constituting a Borrower or a Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Agents or the Lenders hereunder or under any other Credit DocumentsLoan 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 extent Payment in Full of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 1 contract
Samples: Credit Agreement (Funko, Inc.)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each -44- 49 of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agents and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.06), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.06 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each of the Borrowers enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 4.06 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, the Lenders or such successors or assigns first to marshal any of its their claims or to exercise any of its their rights against any of the other Borrower Borrowers or to exhaust any remedies available to it them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.06 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agents or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral until such time as all of the 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 the Agents or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 1 contract
Samples: Financing Agreement (LTV Corp)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.3 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.42.3, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.3, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.3 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.3 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 2.3 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.3 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 2.3 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all of the Borrowers’ Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among between them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will jointly and severally make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.assets whether now owned or hereafter acquired;
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Administrative Agent, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the any other Borrower or to exhaust any remedies available to it against the any other Borrower or to resort to any other source or means of obtaining payment of any of the Borrowers’ Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all of the Borrowers’ Obligations hereunder shall have been paid in full or otherwise fully satisfied, and all of the Commitments and Credit Documents shall have been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Borrowers’ Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(gf) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
(g) Without in any way limiting the provisions of this Section, for record-keeping purposes only, the Borrowers may allocate between themselves the individual Loans made hereunder.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each Borrower agrees that it is jointly and severally liable for the obligations of the Borrowers other Borrower hereunder, including with respect to the payment of principal of and interest on all Loans and the payment of fees and indemnities and reimbursement of costs and expenses. Each Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Collateral Trustee and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) . Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the each other Borrower Borrower, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each all of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, the event each other Borrower will make such payment with respect to, or perform, such ObligationObligations. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement A breach hereof or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except hereunder as to any single Borrower shall constitute a breach, Default or Event of Default as to all the extent Borrowers. Each Borrower waives any and all notice is expressly required to be given pursuant to of the terms of this Credit Agreement)creation, renewal, extension or accrual of any presentment or demand for any payment under this Credit Agreement, of the Obligations and notice of any action at any time taken or omitted proof of reliance by the Administrative Agent or any Lender upon the Lenders under agreements contained in this Section 10.22 or acceptance of the agreements contained in respect of this Section 10.22; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the obligations hereunderagreements contained in this Section 10.22; and all dealings between the Loan Parties, any requirement of diligence andon the one hand, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit Administrative Agent on behalf of any laws that exonerate the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or limit consummated in reliance upon the liability of co-borrowers or sureties and any defenses provided by those lawsagreements contained in this Section 10.22. Each Borrower hereby assents waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon such Borrower with respect to the Obligations. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Borrower, the Administrative Agent may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and waives notice ofremedies as it may have against any other Borrower, any extension other Guarantor or postponement of the time any other Person or against any collateral security or guarantee for the payment Obligations or any right of offset with respect thereto, and any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence failure by the Administrative Agent to make any such demand, to pursue such other rights or the Lenders at remedies or to collect any time payments from any other Borrower, any other Guarantor or times in respect any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any default by either other Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Borrower in the performance or satisfaction of any term, covenant, condition obligation or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations liability hereunder, and shall not impair or affect the takingrights and remedies, additionwhether express, substitution implied or releaseavailable as a matter of law, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any on behalf of the Obligations hereunder remain unsatisfied, Lenders against such Xxxxxxxx. For the obligations purposes hereof “demand” shall include the commencement and continuance of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lenderlegal proceedings. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower any Borrower. With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assignsother Borrowers hereunder, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other such Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect waives, until all the Obligations shall have been paid Paid in full Full (other than contingent indemnification obligations that are not yet due and payable or otherwise fully satisfied. If at any timeas to which no claim has been asserted) and this Agreement shall have been terminated, any paymentright to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender. Subject to the immediately preceding sentence, to the extent that any Borrower shall be required to pay a portion of the Obligations which shall exceed the amount of Loans or other extensions of credit received by such Borrower and all interest, costs, fees and expenses attributable to such Loans or other extensions of credit, then such Borrower shall be reimbursed by the other Borrower for the amount of such excess. This clause is intended only to define the relative rights of Borrowers, and nothing set forth in this clause is intended or shall impair the obligations of each Borrower, jointly and severally, to pay to Administrative Agent, the Collateral Trustee and Lenders the Obligations as and when the same shall become due and payable in accordance with the terms hereof. Notwithstanding anything to the contrary set forth in this clause or any other provisions of this Agreement, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the Obligations of the other Borrowers (and any Lien granted by any Borrower to secure such Obligations), not constitute a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower, each Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the Obligations of any other Borrower (or any Liens granted by such Borrower to secure such Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall automatically be deemed to have been amended accordingly, nunc pro tunc.
(b) Each Borrower’s obligation to pay and perform the Obligations shall be continuing, absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of this Agreement or any other Loan Document, or any part thereofterm or provision therein, made as to any other Borrower, (ii) any amendment or waiver of or any consent to departure from this Agreement or any other Loan Document, in respect of any other Borrower, (iii) the application of any Loan proceeds to, or the extension of any other credit for the benefit of, any other Borrower, any other Loan Party, or any of their Subsidiaries, (iv) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by such Borrower or any other Person against the Administrative Agent, the Collateral Trustee or any Lender or (v) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 10.22(b), constitute a legal or equitable discharge of, or provide a right of setoff against, any Borrower’s obligations hereunder, in each case other than any Payment in Full of the Obligations (other than contingent indemnification obligations not yet due or owing). Each of the Borrowers further agree that (i) its obligations under this Agreement and the other Loan Documents shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvency, bankruptcy or reorganization of either of the Borrowersof, or otherwisethe application of any bankruptcy, the provisions of this Section 2.4 will forthwith be reinstated and in effect insolvency or similar law to, any other Borrower, all as though such payment had not been made.
made and (gii) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)future.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all of the Borrowers’ Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among between them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will jointly and severally make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.20 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.assets whether now owned or hereafter acquired;
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 2.20 are made for the benefit of the Administrative Agent, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal xxxxxxxx any of its claims or to exercise any of its rights against the any other Borrower or to exhaust any remedies available to it against the any other Borrower or to resort to any other source or means of obtaining payment of any of the Borrowers’ Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.20 shall remain in effect until all of the Borrowers’ Obligations hereunder shall have been paid in full or otherwise fully satisfied, and all of the Commitments and Credit Documents shall have been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Borrowers’ Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.20 will forthwith be reinstated and in effect as though such payment had not been made.
(gf) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
(g) Without in any way limiting the provisions of this Section 2.20, for record-keeping purposes only, the Borrowers may allocate between themselves the individual Loans made hereunder.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders Lender under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.12), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each Person composing any of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Persons composing the Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower Person composing any of the Borrowers under the provisions of this Section 2.4 2.12 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Person composing any of the Borrowers enforceable against it each such Borrower to the full extent of its properties and assets, irrespective of the validity, regularity, or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower Person composing any of the Borrowers hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Advances under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders Lender under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages, and, generally, to the extent permitted by applicable law, all demands, notices notices, and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower Person composing any of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent consent, or other action or acquiescence by the Administrative Agent or the Lenders Lender at any time or times in respect of any default by either Borrower any Person composing any of the Borrowers in the performance or satisfaction of any term, covenant, condition condition, or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders Lender in respect of any of the obligations hereunderObligations, and the taking, addition, substitution substitution, or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution substitution, or release, in whole or in part, of either Borrowerany Person composing any of the Borrowers. Without limiting the generality of the foregoing, each Borrower of the Borrowers assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any Person composing any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.4, 2.12 afford grounds for terminating, discharging discharging, or relieving such Borrowerany Person composing any of the Borrowers, in whole or in part, from any of its obligations Obligations under this Section 2.42.12, it being the intention of each Borrower Person composing any of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of each such Borrower Person composing any of the Borrowers under this Section 2.4 2.12 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower Person composing any of the Borrowers under this Section 2.4 2.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction reconstruction, or similar proceeding with respect to either Borrower any Person composing any of the Borrowers or a the Lender. The joint and several liability of the Persons composing any of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation amalgamation, or any other change whatsoever in the name, membershipconstitution, constitution or place of formation of either Borrower or any of the LendersPersons composing any of the Borrowers or the Lender.
(f) Each Person composing any of the Borrowers represents and warrants to the Lender that such Borrower is currently informed of the financial condition of the Borrowers 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 any of the Borrowers further represents and warrants to the Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Person composing any of the Borrowers hereby covenants that such Borrower will continue to keep informed of the Borrowers' financial condition, the financial condition of 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 any of the Borrowers waives all rights and defenses arising out of an election of remedies by the Lender.
(h) Each of the Persons composing any of the Borrowers waives all rights and defenses that such Borrower may have because the Obligations are secured by any Collateral. This means, among other things, that the Lender may collect from such Borrower without first foreclosing on any Collateral pledged by any of the Borrowers.
(i) The provisions of this Section 2.4 2.12 are made for the benefit of the Lenders Lender and their its successors and assigns, and may be enforced by it or them from time to time against either any or all of the Persons composing any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any such Lender, successor, or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrower Persons composing any of the Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Persons composing any of the Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.12 shall remain in effect until all of the Obligations shall have been indefeasibly paid in full or otherwise fully satisfiedfull. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Lender upon the insolvency, bankruptcy bankruptcy, or reorganization of either any of the Persons composing any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.12 will forthwith be reinstated and in effect as though such payment had not been made.
(gj) Notwithstanding Each of the Persons composing any provision of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Persons composing any of the Borrowers with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Credit Loan Documents, any payments made by it to the Lender with respect to any of the Obligations or any collateral security therefor until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the extent prior payment in full in cash of the obligations Obligations and, in the event of either any insolvency, bankruptcy, receivership, liquidation, reorganization, or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts, or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities, or other property, shall be made to any other Borrower therefor.
(k) Each of the Persons composing any of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for, or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been indefeasibly paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall be adjudicated to be invalid collect, enforce, or unenforceable for receive any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations amounts in respect of such Borrower hereunder indebtedness, such amounts shall be limited collected, enforced, and received by such Borrower as trustee for the Lender for application to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy CodeObligations in accordance with Section 2.3(b).
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of Notwithstanding anything in this Agreement or any other Loan Document to the Borrowers is accepting contrary, each Borrower hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders Lender under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of them.
(b) Obligations under this Agreement and the other Loan Documents. Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences preference or distinction among between them.
(c) . If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such ObligationObligations. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 5.15(a) are made for the benefit of the Lenders Lender and their its successors and assigns, assigns and may be enforced by them from time to time against either or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lender or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against the other Borrower or to exhaust any remedies available to it or them against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 5.15(a) shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at Each Borrower hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, or any part thereof, payments made in by it to the Lender with respect of to any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any Collateral until such time as all of the BorrowersObligations have been paid in full in cash. Any claim which either Borrower may have against the other Borrower with respect to any payments to the Lender hereunder or under any of the 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 otherwisethereunder, to the provisions prior payment in full in cash of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madethe Obligations.
(gb) Notwithstanding any provision to the contrary contained [Reserved.]
(c) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Borrower hereunder and under the other Credit Documents, Loan Documents shall in no event exceed the amount which can be guaranteed by such Borrower under applicable federal and state laws relating to the extent the obligations insolvency of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)debtors.
Appears in 1 contract
Samples: Credit Agreement (Merisel Inc /De/)
Joint and Several Liability of the Borrowers. If at any time there is more than one Person composing the Borrower:
(a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lxxxxxx that such Bxxxxxxx is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Bxxxxxxx’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(m) Each entity composing the Borrower hereby irrevocably appoints Yext, Inc. as the borrowing agent and attorney-in-fact for all entities composing the Borrower (the “Administrative Borrower”) which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity composing the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Borrower. Each entity composing the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower and all other notices and instructions under this Agreement and the other Loan Documents, and (b) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Yext, Inc.)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary (including, without limitation, the designation of the Loans as A Revolving Credit Loans, B Revolving Credit Loans, Squire Revolving Credit Loans, Miss Xxxxx Revolving Credit Loans, Xxxx-Xx Revolving Credit Loans and the designation of Letter of Credit Obligations as Squire Letter of Credit Obligations, Miss Xxxxx Letter of Credit Obligations or Xxxx-Xx Letter of Credit Obligations), each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agents and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrower, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.13), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 2.13 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each of the Borrowers enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 2.13 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, the Lenders 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.13 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agents or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral until such time as all of the 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 the Agents or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations Obligations and, in the event of either Borrower any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be adjudicated to be invalid paid in full in cash before any payment or unenforceable for any reason (including, without limitation, because distribution of any applicable state character, whether in cash, securities or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder other property, shall be limited made to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)any other Borrower therefor.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.06), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.06 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to irrespective of the extent permitted by lawvalidity, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default regularity or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms enforceability of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Loan Documents or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenderscircumstances whatsoever.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 1 contract
Samples: Financing Agreement (Milacron Inc)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Loan Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers Borrower hereby agrees such Borrower is, and each such Borrower’s heirs, personal representatives, successors and assigns are, jointly and severally liable for, and hereby irrevocably absolutely and unconditionally acceptsguarantees to Administrative Agent and Lenders and their respective successors and assigns, not merely as a suretythe full and prompt payment (whether at stated maturity, but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment by acceleration or otherwise) and performance of of, all of the Indebtedness and all other Obligations arising under this Credit Agreement and the other Credit Documentsof Borrowers, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12.20 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12.20 shall be absolute and unconditional.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations hereunder as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The guaranty obligations of each Borrower under the provisions of this Section 2.4 12.20 constitute full recourse and binding obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Loan Agreement or any other circumstances whatsoever, including without limitation, the following:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document, the Environmental Indemnity Agreement or any other agreement, document or instrument to which any other Borrower is or may become a party;
(ii) the absence of any action to enforce this Loan Agreement (including this Section 12.20) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
(iii) the existence, value or condition of, or failure to perfect any lien or any security for the Obligations or any action, or the absence of any action, by Administrative Agent and Lenders in respect thereof (including the release of any such security);
(iv) the insolvency of any other Borrower;
(v) the institution of any proceeding under the Federal Bankruptcy Code, or any similar proceeding, by or against a Borrower or Administrative Agent’s election in any such proceeding of the application of Section 1111(b)(2) of the Federal Bankruptcy Code;
(vi) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the Federal Bankruptcy Code;
(vii) the disallowance, under Section 502 of the Federal Bankruptcy Code, of all or any portion of Administrative Agent’s claim(s) for repayment of any of the Obligations; or
(viii) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor other than the payment and performance, in full, of the Obligations. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence or of any Default or Event of Default demand for any payment under this Agreement (except to the extent notice demand is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders any Lender under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsLoan Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Loan Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lendersany Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.412.20, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.412.20, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 12.20 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 12.20 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower any Borrower, Administrative Agent or a any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the LendersLender.
(f) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document or the Environmental Indemnity Agreement, and except as set forth in Section 12.20(j), each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that this subordination is intended to benefit Administrative Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section 12.20, and that Administrative Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 12.20.
(g) If Administrative Agent or any Lender may, under applicable Law, proceed to realize its benefits under any of the Loan Documents or the Environmental Indemnity Agreement giving Administrative Agent or such Lender a lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Administrative Agent or any Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 12.20. If, in the exercise of any of its rights and remedies, Administrative Agent or any Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable Laws pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by Administrative Agent or such Lender and waives any claim based upon such action, even if such action by Administrative Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Administrative Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of Administrative Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations. In the event Administrative Agent or any Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, Administrative Agent or such Lender may bid all or less than the amount of the Obligations and the amount of such bid need not be paid by Administrative Agent or such Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Administrative Agent, Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 12.20, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Administrative Agent or any Lenders might otherwise be entitled but for such bidding at any such sale.
(h) The provisions of this Section 2.4 12.20 are made for the benefit of the Administrative Agent, the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent or any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 12.20 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 12.20 will forthwith be reinstated and in effect as though such payment had not been made.
(gi) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder Each Borrower’s liability under this Section 12.20 shall be limited to an amount not to exceed as of any date of determination the maximum greater of the following:
(i) the amount of the Loan allocated to the Project owned by each Borrower as set forth on Schedule 12.20 hereto (with respect to the applicable Project, the “Allocated Loan Amount”); and
(ii) the amount that could be claimed by Administrative Agent and any Lender from such Borrower under this Section 12.20 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Borrower under Section 12.20(j) below.
(j) Contribution with Respect to Guaranty Obligations:
(i) To the extent that any Borrower (the “Overpaying Borrower”) incurs (i) any payment in excess of its Allocated Loan Amount, or (ii) a loss of its Collateral due to the foreclosure (or other realization by Lenders) of, or the delivery of deeds in lieu of foreclosure relating to it Collateral, and the value of such Collateral exceeded its Allocated Loan Amount (the “Overpayment Amount”), then such Overpaying Borrower shall be entitled, after indefeasible payment in full and the satisfaction of all Obligations to Lenders under this Loan Agreement, to contribution from each of the benefited Borrowers, on a pro rata basis, for the amounts so paid, advanced or benefited, in an amount equal to the difference between the Overpayment Amount and such benefited Borrower’s then current Allocated Loan Amount. Any such contribution payments shall be made within ten (10) Business Days after demand therefor.
(ii) This Section 12.20(j) is permissible intended only to define the relative rights of Borrowers and nothing set forth in this Section 12.20(j) is intended to or shall impair the obligations of Borrowers, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including Section 12.20(a) above. Nothing contained in this Section 12.20(j) shall limit the liability of any Borrower to pay all or any part of the Loan made directly or indirectly to that Borrower and accrued interest, fees and expenses with respect thereto for which such Borrower shall be primarily liable.
(iii) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Borrower to which such contribution and indemnification is owing.
(iv) The rights of the indemnifying Borrowers against other Borrowers under applicable law this Section 12.20(j) shall be exercisable only upon the full and indefeasible payment of the Obligations.
(whether federal k) The liability of Borrowers under this Section 12.20 is in addition to and shall be cumulative with all liabilities of each Borrower to Administrative Agent and Lenders under this Agreement and the other Loan Documents and the Environmental Indemnity Agreement to which such Borrower is a party or state and includingin respect of any Obligations or obligation of the other Borrower, without limitationany limitation as to amount, unless the Bankruptcy Code)instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Healthcare Trust Inc)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers DOC ID - 18336046.11 and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.06), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such ObligationObligations. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.06 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 4.06 are made for the benefit of the Agent, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agent, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.06 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agent or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral, until such time as all of the 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 the Agent or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation Loans to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of themthem with respect to the Obligations.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsAgreement, it being the intention of the parties hereto that all the Obligations shall be the joint and several payment obligations of each of all the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations hereunder as and when due or to perform any of the Obligations in accordance with the terms thereofdue, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, to such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 10.18 constitute full recourse obligations of such Borrower, Borrower enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, and, to the extent permitted by lawapplicable Legal Requirements, each Borrower hereby waives notice irrespective of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersvalidity, notice of occurrence of any Default regularity or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms enforceability of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenderscircumstance whatsoever.
(fe) The provisions of this Section 2.4 10.18 are made for the benefit of the Lenders and the Administrative Agent and their successors and permitted assigns, and may be enforced by them in accordance with the terms of this Agreement from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Administrative Agent first to marshal xxxxxxxx any of its their claims or to exercise any of its their rights against the any other Borrower or to exhaust any remedies available to it them against the any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 10.18 shall remain in effect until all the Obligations obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations obligations, is rescinded or must otherwise be restored or returned by the Lenders or the Administrative Agent upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 10.18 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 1 contract
Samples: Term Loan Credit Agreement (SunCoke Energy Partners, L.P.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder with respect to the Joint and Several Obligations in consideration of the financial accommodation to be provided by the Lenders under Section 2.22 of this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations Joint and Several Obligations of each of themthem under Section 2.22.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Joint and Several Obligations arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Joint and Several Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Joint and Several Obligations hereunder as and when due or to perform any of the such Joint and Several Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full Joint and all Commitments under this Credit Agreement have been terminatedSeveral Obligations.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.24 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Unmatured Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations Joint and Several Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsJoint and Several Obligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either a Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit AgreementAgreement or any other Loan Document, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations Joint and Several Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Joint and Several Obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.42.24, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.24, it being the intention of each Borrower that, so long as any of the Joint and Several Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.24 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.24 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any reconstruction or similar proceeding with respect to a Borrower or a any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either a Borrower or any of the LendersLender.
(f) The provisions of this Section 2.4 2.24 are made for the benefit of the Administrative Agent and the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Joint and Several Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.24 shall remain in effect until all the Joint and Several Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Joint and Several Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 2.24 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Loan Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Subsidiary Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
Appears in 1 contract
Samples: Credit Agreement (Centex Construction Products Inc)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability for the Obligations of all of the Borrowers hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Administrative Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations of the Borrowers (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.17), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 2.17 constitute full recourse obligations of such Borrower, each of the Borrowers enforceable against it each such Borrower to the full extent of its properties and assets.
(e) Except as otherwise expressly provided hereinin this Agreement, each of the Borrowers, to the fullest extent permitted by applicable law, each Borrower hereby waives notice of acceptance of its joint and several liability and liability, notice of all any Loans or other extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment made under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence and, generally, to the extent permitted by applicable law, all demands, notices (other than those required pursuant to the terms of this Agreement or the Loan Documents) and other formalities of every kind in connection with this Credit Agreement and Agreement. Each Borrower, to the benefit fullest extent permitted by applicable law, hereby waives all defenses which may be available by virtue of any laws that exonerate valuation, stay, moratorium law or limit other similar law now or hereafter in effect, any right to require the liability marshaling of co-borrowers or sureties assets of the Borrowers and any other entity or Person primarily or secondarily liable with respect to any of the Obligations and all suretyship defenses provided by those lawsgenerally. Each Borrower of the Borrowers, to the fullest extent permitted by applicable law, hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either Borrowerany of the Borrowers. Without limiting the generality of the foregoing, each Borrower of the Borrowers assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lenders with respect to the Lenders, failure by any of the Borrowers to comply with any of its respective Obligations including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.42.17, afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.17, it being the intention of each Borrower of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such Borrower the Borrowers under this Section 2.4 2.17 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower of the Borrowers under this Section 2.4 2.17 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction re-construction or similar proceeding with respect to either Borrower any of the Borrowers, the Administrative Agent or a Lenderthe Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Borrowers, the Administrative Agent or the Lenders.
(f) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Event of Default, upon the written request of the Administrative Agent, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Facility Termination Date shall have occurred. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness before the Facility Termination Date occurs, such amounts shall be collected, enforced, received by such Borrower as trustee for the Administrative Agent and be paid over to the Administrative Agent for the pro rata accounts of the Lenders (in accordance with each such Lender’s Applicable Percentage) to be applied to repay (or be held as security for the repayment of) the Obligations.
(g) The provisions of this Section 2.4 2.17 are made for the benefit of the Administrative Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them from time to time against either any or all of the Borrowers as often as the occasion therefor may arise and without requirement on the part of the Administrative Agent or the Lenders first to marshal any of its their claims or to exercise any of its their rights against the any other Borrower or to exhaust any remedies available to it them against the any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.17 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of either any of the BorrowersBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this Section 2.4 2.17 will forthwith be reinstated and in effect effect, as though such payment had not been made. The Borrowers hereby agree among themselves that, in connection with any payments made hereunder, each Borrower shall have contribution rights against the other Borrowers as permitted under applicable Law.
(gh) Notwithstanding any provision to It is the contrary contained herein or in any intention and agreement of the other Credit Documents, to Borrowers and the extent Lenders that the obligations of either Borrower the Borrowers under this Agreement shall be adjudicated valid and enforceable against each Borrower to the maximum extent permitted by applicable law. Accordingly, if any provision of this Agreement creating any obligation of the Borrowers in favor of the Administrative Agent and the Lenders shall be declared to be invalid or unenforceable for in any reason respect or to any extent, it is the stated intention and agreement of the Borrowers, the Administrative Agent and the Lenders that any balance of the obligation created by such provision and all other obligations of the Borrowers to the Administrative Agent and the Lenders created by other provisions of this Agreement shall remain valid and enforceable. Likewise, if by final order a court of competent jurisdiction shall declare any sums which the Administrative Agent and the Lenders may be otherwise entitled to collect from the Borrowers under this Agreement to be in excess of those permitted under any law (includingincluding any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Borrowers’ obligations under this Agreement, without limitationit is the stated intention and agreement of the Borrowers and the Administrative Agent and the Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by the Administrative Agent and the Lenders from the Borrowers.
(i) Notwithstanding anything contained herein, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder under this Section 2.17 at any time shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any other Debt Relief Laws.
Appears in 1 contract
Samples: Credit Agreement (Movado Group Inc)
Joint and Several Liability of the Borrowers. Subject to Section 2.10:
(a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Obligations obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all of the Borrowers Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among between them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 2.9 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal xxxxxxxx any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Borrowers Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.9 shall remain in effect until all the Borrowers Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.have
(ge) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
(f) Each Borrower hereby appoints the other Borrower to act as its agent for all purposes under this Credit Agreement (including, without limitation, with respect to all matters relating to the borrowing and repayment of Loans) and agrees that (i) a Borrower may execute such documents on behalf of the other Borrower as it deems appropriate and the other Borrower shall be obligated by all of the terms of any such document executed on its behalf, (ii) any notice or communication delivered by the Agent or a Lender to a Borrower shall be deemed delivered to both Borrowers and (iii) the Agent and the Lenders may accept, and be permitted to rely on, any document, instrument or agreement executed by one Borrower on behalf of the other Borrower.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Duke Energy Field Services LLC)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Credit Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Credit Documents in consideration of the financial accommodation accommodations to be provided by the Agents and the Lenders under this Agreement and the other Credit AgreementDocuments, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.23), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 2.23 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, binding effect or enforceability of this Agreement, the other Credit Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 2.23 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.23 shall remain be in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(gc) Notwithstanding Each of the Borrowers hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against the other Borrowers with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Credit Documents, or any payments made by it to the extent Agents or the obligations Lenders with respect to any of either the Obligations or any Collateral, until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower shall be adjudicated may have against any other Borrower with respect to be invalid any payments to the Agents or unenforceable for the Lenders hereunder or under any reason (includingother Credit Documents are hereby expressly made subordinate and junior in right of payment, without limitationlimitation as to any increases in the Obligations arising hereunder or thereunder, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, prior payment in full in cash of the Bankruptcy Code)Obligations.
Appears in 1 contract
Samples: Debtor in Possession Credit and Guaranty Agreement (Syntax-Brillian Corp)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each undertaking of the Borrowers other Borrower to accept joint and several liability for the obligations of each of themsuch Borrower’s obligations.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment of all of the Obligations and the performance of all of the Obligations arising obligations of the Borrowers under this Credit Agreement and the other Credit DocumentsAgreement, it being the intention of the parties hereto that all the Obligations and all other obligations hereunder shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations its obligations in accordance with the terms thereofhereof, then then, in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives further notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsliability. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations of the other Borrower, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders any Lender at any time or times in respect of any default by either the other Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, and any and all other indulgences whatsoever by the Administrative Agent or the Lenders any Secured Party in respect of any of the obligations hereunder, and Obligations of the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either other Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act with respect to the other Borrower on the part of the Administrative Agent or the Lendersany Secured Party, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with any applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4Section, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.49.17, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any Borrower or a Lenderany Secured Party. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the LendersSecured Party.
(fe) The provisions of this Section 2.4 are made for the benefit of the Lenders Secured Parties and their respective permitted successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any such Person first to marshal any of its claims or to exercise any of its rights against the other any Borrower or to exhaust any remedies available to it against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 9.17 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, time any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders any Secured Parties upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gf) Notwithstanding any provision to the contrary contained herein or in any other of the other Credit Related Documents, to the extent the joint obligations of either a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agent and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 3.5), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences preference or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 3.5 are made for the benefit of the Agent, the Lenders and their successors and assigns, assigns and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agent, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 3.5 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agent or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral until such time as all of the 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 the Agent or returned by the Lenders upon the insolvency, bankruptcy hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in under any of the other Credit DocumentsLoan 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 extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 1 contract
Samples: Loan Agreement (Sunterra Corp)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders Lender under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Secured Obligations. Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably irrevocably, absolutely and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Secured Obligations (including, without limitation, any Secured Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.6), it being the intention of the parties hereto Borrowers that all the Secured Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Secured Obligations as and when due or to perform any of the Secured Obligations in accordance with the terms thereof, then in each such event, the other Borrower Persons composing Borrowers will make such payment with respect to, or perform, such Secured Obligation. Each Borrower further hereby agrees that it shall have no right will not enforce any of subrogation, indemnity, reimbursement its rights of contribution or contribution subrogation against Borrowers with respect to any liability incurred by it hereunder or under any of the other Borrower for amounts so paid under this Credit Agreement Loan Documents, any payments made by it to Lender with respect to any of the Secured Obligations or any collateral security therefor until such time as all of the Lenders Secured 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 Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and all Commitments under this Credit Agreement have been terminated.
(d) The obligations junior in right of each Borrower under payment, without limitation as to any increases in the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided hereinSecured Obligations arising hereunder or thereunder, to the extent permitted by lawprior payment in full in cash of the Secured Obligations and, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to in the Borrowers by the Lenders, notice of occurrence event of any Default insolvency, bankruptcy, receivership, liquidation, reorganization or Event of Default (except to other similar proceeding under the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or laws of any presentment jurisdiction relating to any Borrower, its debts or demand for its assets, whether voluntary or involuntary, all such Secured Obligations shall be paid in full in cash before any payment under this Credit Agreement, notice or distribution of any action at any time taken or omitted by the Administrative Agent or the Lenders under or character, whether in respect of any of the obligations hereundercash, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent securities or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any termproperty, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents shall be made to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenderstherefor.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Tranche A Revolving Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Tranche A Revolving Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agent and the Tranche A Lenders under this Credit AgreementAgreement and the other Tranche A Revolving Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.05), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.05 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each of the Borrowers enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Tranche A Revolving Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 4.05 are made for the benefit of the Agent, the Tranche A Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agent, the Tranche A 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.05 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Tranche A Revolving Loan Documents, any payment, payments made by it to the Agent or any part thereof, made in the Tranche A Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any Collateral until such time as all of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and Obligations have been paid in effect as though such payment had not been made.
(g) Notwithstanding full in cash. Any claim which any provision Borrower may have against any other Borrower with respect to any payments to the contrary contained herein Agent or the Tranche A Lenders hereunder or under any other Tranche A Revolving Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any of increases in the other Credit DocumentsObligations arising hereunder or thereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 1 contract
Joint and Several Liability of the Borrowers. If at any time there is more than one Person composing the Borrower:
(a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(m) Each entity composing the Borrower hereby irrevocably appoints Yext, Inc. as the borrowing agent and attorney-in-fact for all entities composing the Borrower (the “Administrative Borrower”) which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity composing the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Borrower. Each entity composing the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower and all other notices and instructions under this Agreement and the other Loan Documents, and (b) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Yext, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.28), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.28 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.28 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.28, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.28 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.28 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrower’s 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrower.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrower:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrower. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.28 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.28 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.28 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.28, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 1 contract
Samples: Credit Agreement (RhythmOne PLC)
Joint and Several Liability of the Borrowers. If at any time there is more than one Person composing the Borrower:
(a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(m) Each entity composing the Borrower hereby irrevocably appoints Tenable, Inc. as the borrowing agent and attorney-in-fact for all entities composing the Borrower (the “Administrative Borrower”) which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity composing the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Borrower. Each entity composing the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower and all other notices and instructions under this Agreement and the other Loan Documents, and (b) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers Borrower hereby agrees such Borrower is, and each such Borrower's heirs, personal representatives, successors and assigns are, jointly and severally liable for, and hereby irrevocably absolutely and unconditionally acceptsguarantees to Administrative Agent and Lenders and their respective successors and assigns, not merely as a suretythe full and prompt payment (whether at stated maturity, but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment by acceleration or otherwise) and performance of of, all of the Obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 2.13 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 2.13 shall be absolute and unconditional.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations hereunder as and when due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The guaranty obligations of each Borrower under the provisions of this Section 2.4 2.13 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstances whatsoever, including without limitation, the following:
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Credit Agreement, any other Credit Document or any other agreement, document or instrument to which any other Borrower is or may become a party;
(ii) the absence of any action to enforce this Credit Agreement (including this Section 2.13) or any other Credit Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
(iii) the existence, value or condition of, or failure to perfect any Lien or any security for the Obligations or any action, or the absence of any action, by Administrative Agent and Lenders in respect thereof (including the release of any such security);
(iv) the insolvency of any other Borrower;
(v) the institution of any proceeding under the Federal Bankruptcy Code, or any similar proceeding, by or against a Borrower or Administrative Agent's election in any such proceeding of the application of Section 1111(b)(2) of the Federal Bankruptcy Code;
(vi) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the Federal Bankruptcy Code;
(vii) the disallowance, under Section 502 of the Federal Bankruptcy Code, of all or any portion of Administrative Agent's claim(s) for repayment of any of the Obligations; or
(viii) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor other than the payment and performance, in full, of the Obligations. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Credit Agreement), notice of any action at any time taken or omitted by the Administrative Agent or the Lenders any Lender under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.42.13, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.13, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.13 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.13 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any Borrower or a any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the LendersLender.
(f) Notwithstanding anything to the contrary in this Agreement or in any other Credit Document, and except as set forth in Section 2.13(j), each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that this subordination is intended to benefit Administrative Agent and Lenders and shall not limit or otherwise affect such Borrower's liability hereunder or the enforceability of this Section 2.13, and that Administrative Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 2.13.
(g) If Administrative Agent or any Lender may, under applicable Law, proceed to realize its benefits under any of the Credit Documents giving Administrative Agent or such Lender a Lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Administrative Agent or any Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 2.13. If, in the exercise of any of its rights and remedies, Administrative Agent or any Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable Laws pertaining to "election of remedies" or the like, each Borrower hereby consents to such action by Administrative Agent or such Lender and waives any claim based upon such action, even if such action by Administrative Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Administrative Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of Administrative Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower's obligation to pay the full amount of the Obligations. In the event Administrative Agent or any Lender shall bid at any foreclosure or trustee's sale or at any private sale permitted by law or the Credit Documents, Administrative Agent or such Lender may bid all or less than the amount of the Obligations and the amount of such bid need not be paid by Administrative Agent or such Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Administrative Agent, Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 2.13, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Administrative Agent or any Lenders might otherwise be entitled but for such bidding at any such sale.
(h) The provisions of this Section 2.4 2.13 are made for the benefit of the Administrative Agent, the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.13 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.13 will forthwith be reinstated and in effect as though such payment had not been made.
(gi) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder Each Borrower's liability under this Section 2.13 shall be limited to an amount not to exceed as of any date of determination the maximum greater of the following:
(i) the amount of the Loan allocated to each Borrower as set forth on Schedule 2.13 hereto (the "Allocable Amount"); and
(ii) the amount that is permissible could be claimed by Administrative Agent and any Lender from such Borrower under applicable law (whether federal this Section 2.13 without rendering such claim voidable or state and including, without limitation, avoidable under Section 548 of Chapter 11 of the Bankruptcy Code)Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower's right of contribution and indemnification from each other Borrower under Section 2.13(j) below.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each Borrower agrees that it is jointly and severally liable for the obligations of the other Borrowers under the Loan Documents, including with respect to the payment of principal of and interest on all Loans and the payment of fees and indemnities and reimbursement of costs and expenses. Each Borrower is accepting joint and several liability hereunder in consideration of the financial accommodation accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) . Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations arising obligations under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations such obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among between them.
(c) . If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations obligations under the Loan Documents as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligationobligations. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of the Loans made under this Agreement, notice of the occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Collateral Agent or the Lenders under or in respect of any of the obligations hereunderunder the Loan Documents, any requirement of diligence or to mitigate damages and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement Agreement, except for any demands, notices and other formalities expressly required under the benefit terms of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsthis Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligationsobligations under the Loan Documents, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent or the Lenders at any time or times in respect of any default (including any Default or Event of Default) by either Borrower the other Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent, the Collateral Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent, the Collateral Agent or the Lenders, including, without limitation, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder thereunder, which might, but for the provisions of this Section 2.4Section 10.22, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4Section 10.22, it being the intention of each Borrower that, so long as any of the Obligations hereunder obligations under the Loan Documents remain unsatisfied, the obligations of such Borrower under this Section 2.4 Section 10.22 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower the other Borrowers. With respect to each Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the Lenders.
(f) The provisions of this Section 2.4 are made for other Borrowers hereunder, such Borrower waives, until the benefit of obligations under the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations Loan Documents shall have been paid in full in cash (other than contingent indemnification obligations that are not yet due and payable or otherwise fully satisfied. If at any timeas to which no claim has been asserted) and this Agreement shall have been terminated, any paymentright to enforce any right of subrogation or any remedy which the Administrative Agent, the Collateral Agent and/or any Lender now has or may hereafter have against the other Borrowers, any endorser or any guarantor of all or any part of the obligations under the Loan Documents, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent and/or any Lender to secure payment of the obligations under the Loan Documents or any other liability of the Borrowers to the Administrative Agent, the Collateral Agent and/or any Lender.
(b) Subject to the immediately preceding sentence, to the extent that any Borrower shall be required to pay a portion of the obligations under the Loan Documents which shall exceed the amount of Loans other extensions of credit received by such Borrower and all interest, costs, fees and expenses attributable to such Loans or other extensions of credit, then such Borrower shall be reimbursed by the other Borrowers for the amount of such excess. This paragraph is intended only to define the relative rights of Borrowers, and nothing set forth in this paragraph is intended or shall impair the obligations of each Borrower, jointly and severally, to pay to Administrative Agent, the Collateral Agent and Lenders the obligations under the Loan Documents as and when the same shall become due and payable in accordance with the terms hereof. Notwithstanding anything to the contrary set forth in this paragraph or any other provisions of this Agreement, it is the intent of the parties hereto that the liability incurred by each Borrower in respect of the obligations under the Loan Documents of the other Borrowers (and any Lien granted by each Borrower to secure such obligations), not constitute a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Borrower, the Administrative Agent, the Collateral Agent and each Lender hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Borrower in respect of the obligations under the Loan Documents of the other Borrowers (or any Liens granted by such Borrower to secure such obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Loan Documents shall automatically be deemed to have been amended accordingly, nunc pro tunc.
(c) Each Borrower’s obligation to pay and perform the obligations under the Loan Documents shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i)any lack of validity or enforceability of this Agreement, or any part thereofterm or provision therein, made as to the other Borrowers, (ii)any amendment or waiver of or any consent to departure from this Agreement or any other Loan Document, in respect of the other Borrowers, (iii)the application of any Loan proceeds to, or the extension of any other credit for the benefit of, the other Borrowers, any other Loan Party, or any of their Subsidiaries or (iv)any other event or circumstance whatsoever, whether or not similar to any of the Obligations foregoing, that might, but for the provisions of this Section 10.22, constitute a legal or equitable discharge of, or provide a right of setoff against, any Borrower’s obligations hereunder, in each case other than any payment in full of such obligations (other than contingent indemnification obligations not yet due or owing). Each of the Borrowers further agree that (i) its obligations under this Agreement and the other Loan Documents shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any such obligations is rescinded or must otherwise be restored or returned by the Lenders any Person upon the insolvency, bankruptcy or reorganization of, or the application of either of any Debtor Relief Laws to, the other Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect all as though such payment had not been made.
made and (gii) Notwithstanding it hereby unconditionally and irrevocably waives any provision right to revoke its joint and several liability under the contrary contained herein Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)future.
Appears in 1 contract
Samples: Credit Agreement (Uniti Group Inc.)
Joint and Several Liability of the Borrowers. (a) Each of Notwithstanding anything in this Agreement or any other Loan Document to the Borrowers is accepting contrary, each Borrower hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders Lender under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers other Borrower to accept joint and several liability for the obligations of each of them.
(b) Obligations under this Agreement and the other Loan Documents. Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences preference or distinction among between them.
(c) . If and to the extent that either of the Borrowers Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower will make such payment with respect to, or perform, such ObligationObligations. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 5.15 are made for the benefit of the Lenders Lender and their its successors and assigns, assigns and may be enforced by them from time to time against either or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Lender or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against the other Borrower or to exhaust any remedies available to it or them against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 5.15 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at Each Borrower hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, or any part thereof, payments made in by it to the Lender with respect of to any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any Collateral until such time as all of the Borrowers, or otherwise, Obligations have been paid in full in cash. Any claim which either Borrower may have against the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding other Borrower with respect to any provision payments to the contrary contained Lender hereunder or under any of the 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. Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Borrower hereunder and under the other Credit Documents, Loan Documents shall in no event exceed the amount which can be guaranteed by such Borrower under applicable federal and state laws relating to the extent the obligations insolvency of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)debtors.
Appears in 1 contract
Samples: Credit Agreement (Merisel Inc /De/)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation Advances and Letters of Credit to be provided by the Lenders and the Administrative Agent under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of themthem with respect to the Obligations.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrower, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsAgreement, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of all the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, event the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.14 constitute full recourse obligations of such Borrower, Borrower enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided hereinassets and, to the extent permitted by lawapplicable Legal Requirements, each Borrower hereby waives notice irrespective of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersvalidity, notice of occurrence of any Default regularity or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms enforceability of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenderscircumstance whatsoever.
(fe) The provisions of this Section 2.4 2.14 are made for the benefit of the Lenders and the Administrative Agent and their successors and permitted assigns, and may be enforced by them in accordance with the terms of this Agreement from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or the Administrative Agent first to marshal xxxxxxxx any of its their claims or to exercise any of its their rights against the other Borrower or to exhaust any remedies available to it them against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.14 shall remain in effect until all the Obligations obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations obligations, is rescinded or must otherwise be restored or returned by the Lenders or the Administrative Agent upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 2.14 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 1 contract
Joint and Several Liability of the Borrowers. If, at any time there is more than one Person composing the Borrower:
(a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets., irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever. ny-2508035
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Xxxxxxx that such Xxxxxxxx is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Xxxxxxxx’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers: ny-2508035
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent or Lenders with respect to any of the Obligations or any collateral security therefor until the Discharge of Obligations. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Discharge of Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or in other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after the Discharge of Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior Discharge of Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement. ny-2508035
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(m) Each entity composing the Borrower and each other Loan Party hereby irrevocably appoints Appian Corporation as the borrowing agent and attorney-in-fact for all entities composing the Borrower and each other Loan Party (the “Administrative Borrower”), which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity composing the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Borrower. Each entity composing the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Administrative Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower or any other Loan Party and all other notices and instructions under this Agreement and the other Loan Documents, and (b) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Appian Corp)
Joint and Several Liability of the Borrowers. (ai) Each of Notwithstanding anything in this Master Agreement or any other Loan Document to the Borrowers is accepting joint contrary, each Borrower, jointly and several liability hereunder severally, in consideration of the financial accommodation accommodations to be provided by the Lenders Lender under this Credit AgreementMaster Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally Obligations, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit DocumentsObligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of Borrower without the Borrowers without preferences or distinction among them. The Borrowers shall be liable for all Obligations amounts due to the Lender (or any Collateral Agent) under this Master Agreement, regardless of which Borrower actually receives the Loans, the amount of such Loans received or the manner in which the Lender accounts for such Loans or other extensions of credit on its books and records. The Obligations of the Borrowers with respect to Loans made to one of them, and the Obligations arising as a result of the joint and several liability of one of the Borrowers hereunder with respect to Loans made to the other of the Borrowers hereunder, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers.
(cii) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(diii) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 10(k) shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lenderany Borrower. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersBorrower.
(fiv) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 10(k) shall remain in effect until all of the Obligations shall have been irrevocably paid in full or otherwise fully satisfiedin immediately available funds and all Commitments to make Loans hereunder and under any other Loan Documents have been terminated (the “Termination Date”). If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 10(k) hereof will forthwith be reinstated and in effect as though such payment had not been made.
(gv) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Loan Documents, to the extent the obligations of either a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) ), then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under any applicable law (whether federal federal, state or state provincial and including, without limitation, the Bankruptcy CodeCode of the United States).
(vi) With respect to the Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to the other Borrowers hereunder, to the maximum extent permitted by applicable law, each Borrower waives, until the Termination Date, any right to enforce any right of subrogation or any remedy which the Lender hereafter has against any Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Lender. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Lender hereunder or under any of the 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, until such time as this Master Agreement terminates. Upon the occurrence of any Event of Default and for so long as the same is continuing to the maximum extent permitted under applicable law, the Lender may proceed directly and at once, without notice (to the extent notice is waivable under applicable law), against (A) with respect to Obligations of the Borrowers, either or all of them or (B) with respect to Obligations of any Borrower, to collect and recover the full amount, or any portion of the applicable Obligations, without first proceeding against the other Borrowers or any other person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Lender shall be under no obligation to marshal any assets in favor of the Borrower(s) or against or in payment of any or all of the Obligations. Subject to the foregoing, in the event that a Loan advance or other extensions of credit is made to, or with respect to the business of, one Borrower and any other Borrower makes any payments with respect to such Advance or extensions of credit, the first Borrower shall promptly reimburse such other Borrower for all payments so made by such other Borrower.
Appears in 1 contract
Samples: Master Equipment Finance Agreement (SilverSun Technologies, Inc.)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Loan Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations of each Borrower under the provisions of this Section 2.4 SECTION 2.20 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4SECTION 2.20, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4SECTION 2.20, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 SECTION 2.20 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 SECTION 2.20 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 SECTION 2.20 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 SECTION 2.20 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 SECTION 2.20 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Loan Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers with respect to the payment and performance of all of the Obligations arising under this Credit Agreement and the other Credit Fundamental Documents, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations obligations hereunder as and when due or to perform any of the Obligations such obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedobligation.
(d) The obligations of each Borrower under the provisions of this Section 2.4 2.15 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Credit Agreement), notice of any action at any time taken or omitted by the Administrative Agent or the Lenders Lender under or in respect of any of the obligations Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those lawsAgreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the LendersLender, 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 2.42.15, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.42.15, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 2.15 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 2.15 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either any reconstruction or similar proceeding with respect to any Borrower or a any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either any Borrower or any of the LendersLender.
(f) The provisions of this Section 2.4 2.15 are made for the benefit of the Administrative Agent, Issuing Bank, Swingline Lender, the Lenders and their respective successors and assigns, and may be enforced by them any such Person from time to time against either any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders any Lender first to marshal any of its claims or to exercise any of its rights against any of the other Borrower Borrowers or to exhaust any remedies available to it against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.15 shall remain in effect until all the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either any of the Borrowers, or otherwise, the provisions of this Section 2.4 2.15 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit DocumentsFundamental Document, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such each Borrower hereunder shall be limited to an aggregate amount equal to the maximum largest amount that is permissible would not render its obligations hereunder subject to avoidance under applicable law (whether federal or state and including, without limitation, Section 548 of the Bankruptcy Code)Code or any comparable provisions of any applicable state law.
(h) The Parent Borrower and the Additional Borrowers hereby agree as among themselves that, in connection with payments made hereunder, each such Person shall have a right of contribution from each other Borrower in accordance with applicable Laws. Such contribution rights shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations have been irrevocably paid in full and the Commitments relating thereto shall have expired or been terminated, and none of the Parent Borrower or any Additional Borrower shall exercise any such contribution rights until the Obligations have been irrevocably paid in full and the Commitments relating thereto shall have expired or been terminated.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other the Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower the Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Administrative Agent’s or such Lender’s rights of subrogation and reimbursement against such Borrower by the operation of Section 580(d) of the California Code of Civil Procedure or otherwise:
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Administrative Agent, the Lenders and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation In order to be provided by induce the Lenders under this Credit Agreementand the Swingline Lender to extend credit hereunder, for the mutual benefit, directly and indirectly, of each of the Borrowers agrees that it will be jointly and in consideration of the undertakings of each of the Borrowers to accept joint and several liability severally liable for all the obligations of each all the Borrowers hereunder (collectively, the “Obligations”), including without limitation the principal of themand interest on all Loans made to any Borrower and all obligations with respect to the payment of fees and indemnities and reimbursement of costs and expenses provided for herein. Each Borrower further agrees that the due and punctual payment of the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound hereunder notwithstanding any such extension or renewal of any Obligation.
(b) Each Borrower waives presentment to, demand of payment from and protest to any other Borrower of any of the Borrowers jointly Obligations, and severally hereby irrevocably also waives notice of acceptance of its obligations and unconditionally accepts, notice of protest for nonpayment. The Obligations of a Borrower hereunder shall not merely as a surety, but also as a co-debtor, joint and several liability with be affected by (i) the failure of any Lender or the Administrative Agent to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower with respect to under the payment and performance provisions of all this Agreement or otherwise or (ii) any rescission, waiver, amendment or modification of any of the Obligations arising under terms or provisions of this Credit Agreement and or any other agreement (other than the other Credit Documents, it being the intention indefeasible payment in full in cash of the parties hereto that all the Obligations shall be and except to the joint and several obligations extent that such Obligations have been explicitly modified pursuant to an amendment or waiver that has become effective in accordance with Section 9.02). (For the avoidance of each doubt, this Section 9.13 will not limit the ability of the Borrowers without preferences or distinction among themBorrowers, the Subsidiaries and their Affiliates to engage in Permitted Reorganization Transactions otherwise permitted by this Credit Agreement.)
(c) If and to the extent that either of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it its agreement under this Section constitutes a promise of payment when due (whether or not any bankruptcy or similar proceeding shall have no stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not of collection, and waives any right to require that any resort be had by any Lender or the Administrative Agent to any balance of subrogation, indemnity, reimbursement any deposit account or contribution against credit on the books of such Lender or the Administrative Agent in favor of any Borrower or any other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedPerson.
(d) The obligations of each Borrower under the provisions of this Section 2.4 constitute full recourse obligations of such Borrowershall not be subject to any reduction, enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided hereinlimitation, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default impairment or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand termination for any payment under this Credit Agreementreason, notice of and shall not be subject to any action at any time taken defense or omitted setoff, counterclaim, recoupment or termination whatsoever, by the Administrative Agent or the Lenders under or in respect of any reason of the obligations hereunderinvalidity, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate illegality or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any unenforceability of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower impossibility in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution Obligations or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrowerotherwise. Without limiting the generality of the foregoing, each the obligations of a Borrower assents to any other action under this Section shall not be discharged or delay in acting impaired or any otherwise affected by (i) the failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently Lender to assert any right claim or demand or to pursue enforce any remedy under this Agreement or any other agreement, (ii) any waiver or modification in respect of any thereof, (iii) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations or (iv) any other act or omission that may or might in any manner or to comply fully with applicable laws any extent vary the risk of such Borrower or regulations thereunder which might, but for the provisions otherwise operate as a discharge of this Section 2.4, afford grounds for terminating, discharging such Borrower or relieving such Borrower, in whole any other Borrower as a matter of law or in part, from any of equity.
(e) Each Borrower further agrees that its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorptionto be effective or be reinstated, mergeras the case may be, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of the Lenders and their successors and assigns, and may be enforced by them from time to time against either of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If if at any time, any time payment, or any part thereof, made in respect of any of the Obligations Obligation is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either any other Borrower or otherwise.
(f) In furtherance of the Borrowersforegoing and not in limitation of any other right which the Administrative Agent or any Lender may have at law or in equity against any Borrower by virtue of this Section, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment of otherwise, each Borrower hereby promises to and will, upon receipt of written demand by the Administrative Agent, forthwith pay, or otherwisecause to be paid, in cash the provisions amount of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeunpaid Obligation.
(g) Notwithstanding any provision to the contrary contained herein or in any If by virtue of the other Credit Documentsprovisions set forth herein, any Borrower is required to the extent the obligations of either Borrower pay and shall be adjudicated to be invalid or unenforceable for any reason (includingpay Obligations initially incurred by another Borrower, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations all rights of such Borrower hereunder against such other Borrower arising as a result of such payment by way of right of subrogation or otherwise shall in all respects be limited subordinated and junior in right of payment to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, prior indefeasible payment in full of all the Bankruptcy Code)Obligations.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agents, the L/C Issuer and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 5.06), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 5.06 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, binding effect or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 5.06 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 5.06 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agents or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral, until such time as all of the 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 the Agents or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 1 contract
Samples: Financing Agreement (Aaipharma Inc)
Joint and Several Liability of the Borrowers. If at any time there is more than one Person composing the Borrower:
(a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.25), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedObligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.25 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.25 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.25, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.25 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.25 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) Each Borrower represents and warrants to the Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrowers’ 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 Borrower waives all rights and defenses (i) arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Uniform Commercial Code or any other applicable law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
(h) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property at any time. This means, among other things:
(i) The Administrative Agent and Lenders may collect from such Borrower without first foreclosing on any real or personal property Collateral pledged by the Borrowers.
(ii) If the Administrative Agent or any Lender forecloses on any Collateral consisting of real property pledged by the Borrowers:
(A) The amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The Administrative Agent and Lenders may collect from such Borrower even if the Administrative Agent or Lenders, by foreclosing on real property, has destroyed any right such Borrower may have to collect from the other Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(i) The provisions of this Section 2.4 2.25 are made for the benefit of the Lenders Administrative Agent, the Lenders, and their respective successors and assigns, and may be enforced by it or them from time to time against either of any or all the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any Lender, any successor or any assign first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.25 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 2.25 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gj) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent 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 Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or 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 Borrower, 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 Borrower therefor. Notwithstanding any provision anything to the contrary contained herein in this Section 2.25, no Borrower shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in any full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to the Security Documents or otherwise.
(k) Each Borrower 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 Borrower to any other Credit DocumentsBorrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.
(l) Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the obligations Obligations made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower in an amount, for each of either such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited equal to the maximum amount that is permissible under applicable law of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (whether federal or state and including, without limitation, a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(m) Each entity composing the Borrower hereby irrevocably appoints Xxxx.xxx as the borrowing agent and attorney-in-fact for all entities composing the Borrower (the “Administrative Borrower”) which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity composing the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Borrower. Each entity composing the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower and all other notices and instructions under this Agreement and the other Loan Documents, and (b) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents.
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers is accepting Borrower hereby accepts joint and several liability hereunder and under the other Loan Documents for all Obligations arising under or in connection with the Revolving Credit Facility, the Letters of Credit and the Swing Line Loans (including obligations with respect to principal, interest, fees and expenses with respect to the Revolving Credit Facility, the Letters of Credit and the Swing Line Loans (including such interest, fees, and expenses that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees, and expenses are allowed claims in such proceeding) and reimbursement of amounts drawn under Letters of Credit) (collectively, the “Revolving Loan Obligations”) in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of themRevolving Loan Obligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Revolving Loan Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 10.32), it being the intention of the parties hereto that all the Revolving Loan Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Revolving Loan Obligations as and when due or to perform any of the Revolving Loan Obligations in accordance with the terms thereof, then in each such event, event the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminatedRevolving Loan Obligations.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 10.32 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to in this Agreement and the extent permitted by lawother Loan Documents, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of an Increased Revolving Commitment or Extended Revolving Commitments under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders any other Secured Party under or in respect of any of the obligations hereunderRevolving Loan Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement (except as otherwise provided in this Agreement).
(f) Each Borrower represents and warrants to the Administrative Agent and the benefit other Secured Parties that such Xxxxxxxx is currently informed of any laws the financial condition of the other Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Revolving Loan Obligations. Each Borrower further represents and warrants to the Administrative Agent and the other Secured Parties that exonerate or limit such Borrower has read and understands the liability terms and conditions of co-borrowers or sureties and any defenses provided by those lawsthe Loan Documents. Each Borrower hereby assents tocovenants that such Borrower will continue to keep informed of the other Borrowers’ financial condition, the financial condition of the other Guarantors, if any, and waives notice of, any extension of all other circumstances which bear upon the risk of nonpayment or postponement nonperformance of the time for the payment Revolving Loan Obligations.
(g) Each Borrower waives all rights and defenses arising out of any an election of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence remedies by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part Secured Party, even though that election of the Administrative Agent or the Lendersremedies, 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 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding a nonjudicial foreclosure with respect to either Borrower Collateral securing a Revolving Loan Obligation, has destroyed the Administrative Agent’s or a Lender. The joint such Secured Party’s rights of subrogation and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding reimbursement against any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersBorrower.
(fh) The provisions of this Section 2.4 10.32 are made for the benefit of the Lenders Administrative Agent, the other Secured Parties and their respective successors and assigns, and may be enforced by it or them from time to time against either of the any or all Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, any other Secured Party or any of their respective successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against the other any Borrower or to exhaust any remedies available to it or them against the other any Borrower or to resort to any other source or means of obtaining payment of any of the Revolving Loan Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 10.32 shall remain in effect until all of the Revolving Loan Obligations shall have been paid in full or otherwise fully satisfiedin accordance with the express terms of this Agreement. If at any time, any payment, or any part thereof, made in respect of any of the Obligations Revolving Loan Obligations, is rescinded or must otherwise be restored or returned by the Lenders Administrative Agent or any other Secured Party upon the insolvency, bankruptcy or reorganization of either of the Borrowersany Borrower, or otherwise, the provisions of this Section 2.4 10.32 will forthwith be reinstated and in effect effect, as though such payment had not been made.
(gi) Notwithstanding Each Borrower hereby agrees that it will not enforce any provision of its rights of contribution or subrogation against any other Borrower with respect to the contrary contained herein any liability incurred by it hereunder or in under any of the other Credit Loan Documents, any payments made by it to the Administrative Agent or any other Secured Party with respect to any of the Revolving Loan Obligations or any Collateral securing such Revolving Loan Obligations until such time as all of the Revolving Loan Obligations have been paid in full in accordance with the terms of this Agreement. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Administrative Agent or any other Secured Party 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 Revolving Loan Obligations, to the prior payment in full in cash of the Revolving Loan Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Revolving Loan 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 Borrower therefor.
(j) Each Borrower 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 any Indebtedness owing by any Borrower to any other Borrower is hereby subordinated and postponed to the prior payment in full in cash of the Revolving Loan Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Revolving Loan Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such Indebtedness, subject to any Customary Intercreditor Agreement then in effect, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Revolving Loan Obligations.
(k) Each Borrower hereby agrees that, to the extent the obligations any Borrower shall have paid more than its proportionate share of either any payment made hereunder, such Borrower shall be adjudicated entitled to seek and receive contribution from and against any other Borrower hereunder which has not paid its proportionate share of such payment, in an amount not to exceed the highest amount that would be invalid valid and enforceable and not subordinated to the claims of other creditors as determined in any action or unenforceable for proceeding involving any reason state corporate, limited partnership or limited liability law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally. Each such Borrower’s right of contribution shall be subject to the terms and conditions of clauses (including, without limitation, because i) and (j) of this Section 10.32. The provisions of this clause (k) shall in no respect limit the obligations and liabilities of any Borrower to the Administrative Agent and the other Secured Parties, and each Borrower shall remain liable to the Administrative Agent and the Secured Parties for the full amount such Borrower agreed to repay hereunder.
1. On (a Business Day).
2. In the amount of [$][C$][€][£] .2
(i) three Business Days prior to the requested date of any Committed Borrowing of, conversion to or continuation of Term SOFR Loans, or of any conversion of Base Rate Committed Loans to Term SOFR Loans, (ii) three Business Days prior to the requested date of any Borrowing of or continuation of Eurocurrency Rate Loans denominated in an Alternative Currency, CDOR Rate Loans, EURIBO Rate Loans or XXXXX Rate Loans; and (iii) on the requested date of any Borrowing of or conversion of Term SOFR Loans to Base Rate Committed Loans; provided, however, that, if the applicable state Borrower wishes to request Term SOFR Loans, Eurocurrency Rate Loans, CDOR Rate Loans or federal law relating EURIBO Rate Loans having an Interest Period other than one, three or six months in duration as provided in the definition of “Interest Period”, the applicable notice must be received by the Administrative Agent not later than 12:00 p.m. five Business Days prior to fraudulent conveyances or transfers) then the obligations requested date of such Borrower hereunder Committed Borrowing, conversion (in the case of Committed Loans denominated in Dollars) or continuation. 2 Each Committed Borrowing of, conversion to (in the case of Committed Loans denominated in Dollars) or continuation of Term SOFR Loans, Eurocurrency Rate Loans, CDOR Rate Loans, EURIBO Rate Loans or XXXXX Rate Loans, shall be limited in a principal amount of the Dollar Equivalent of $1,000,000 or a whole multiple of the Dollar Equivalent of $1,000,000 in excess thereof or such other amount as corresponds to any Term Loan amortization payment. Except as provided in Sections 2.03(c) and 2.04(c) of the maximum Credit Agreement, each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount that is permissible of $100,000 or a whole multiple of $100,000 in excess thereof or such other amount as corresponds to any Term Loan amortization payment.
3. Comprised of [Type of Committed Loan requested] under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)[Insert Type of Facility].
Appears in 1 contract
Samples: Credit Agreement (Viad Corp)
Joint and Several Liability of the Borrowers. (a) Each of the Borrowers Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers Borrower and in consideration of the undertakings of each of the Borrowers any other Borrower to accept joint and several liability for the obligations of each of themObligations.
(b) Each of the Borrowers Borrower, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the any other Borrower Borrower, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.26), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers Borrower without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the event any other Borrower will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower under the provisions of this Section 2.4 2.26 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrower, each Borrower enforceable against it each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by lawin this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lendersliability, notice of any Loans made or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default or Default, Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement)Default, or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunderObligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses (except as otherwise provided by those lawsin this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunderObligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations the Obligations or the addition, substitution or release, in whole or in part, of either any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or Lender with respect to the Lendersfailure by any 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 thereunder, which might, but for the provisions of this Section 2.4, 2.26 afford grounds for terminating, discharging or relieving such any Borrower, in whole or in part, from any of its obligations Obligations under this Section 2.42.26, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations Obligations of such each Borrower under this Section 2.4 2.26 shall not be discharged except by performance and then only to the extent of such performance. The obligations Obligations of each Borrower under this Section 2.4 2.26 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of any Borrower, the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation Administrative Agent or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the LendersLender.
(f) The provisions of this Section 2.4 are made for Each Borrower represents and warrants to the benefit Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of the Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to the Administrative Agent and Lenders that such Borrower has read and their successors understands the terms and assignsconditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the Borrower’s financial condition, the financial condition of other guarantors, if any, and may be enforced by them from time to time against either of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 shall remain in effect until all the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been madeObligations.
(g) Notwithstanding Each Borrower waives all rights and defenses arising out of an election of remedies by the Administrative Agent or any provision Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the contrary contained herein Administrative Agent’s or in any such Lender’s rights of the other Credit Documents, to the extent the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of subrogation and reimbursement against such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).Borrower:
Appears in 1 contract
Samples: Credit Agreement (Global Telecom & Technology, Inc.)
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Agents and the Lenders under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 4.06), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the #97100791v3 extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 4.06 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 4.06 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 4.06 shall remain in effect until all of the Obligations (other than unasserted contingent indemnification Obligations) shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Agents or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored any Collateral, until such time as all of the Obligations (other than unasserted contingent indemnification 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 the Agents or returned by the Lenders upon 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 insolvency, bankruptcy Obligations arising hereunder or reorganization of either of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documentsthereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason Obligations (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Codeother than unasserted contingent indemnification Obligations).
Appears in 1 contract
Joint and Several Liability of the Borrowers. (a) Each Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers is accepting hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation accommodations to be provided by the Lenders Administrative Agent and the Lender under this Credit AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the other Borrowers to accept joint and several liability for the obligations of each of them.
(b) Obligations. Each of the Borrowers Borrowers, jointly and severally severally, hereby irrevocably and unconditionally accepts, not merely as a surety, surety but also as a co-debtor, joint and several liability with the other Borrower Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Credit Agreement and the other Credit DocumentsSection 2.14), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them.
(c) . If and to the extent that either any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrower Borrowers will make such payment with respect to, or perform, such Obligation. Each Borrower further agrees that it shall have no right of subrogationSubject to the terms and conditions hereof, indemnity, reimbursement or contribution against the other Borrower for amounts so paid under this Credit Agreement until such time as the Lenders have been paid in full and all Commitments under this Credit Agreement have been terminated.
(d) The obligations Obligations of each Borrower of the Borrowers under the provisions of this Section 2.4 2.14 constitute the absolute and unconditional, full recourse obligations Obligations of such Borrowereach of the Borrowers, enforceable against it each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, to the extent permitted by law, each Borrower hereby waives notice of acceptance of its joint and several liability and of all extensions of credit to the Borrowers by the Lenders, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Credit Agreement), or of any presentment or demand for any payment under this Credit Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect of any of the obligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Credit Agreement and the benefit of any laws that exonerate or limit the liability of co-borrowers or sureties and any defenses provided by those laws. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by either Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of either Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or the Lenders, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder which might, but for the provisions of this Section 2.4, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 2.4, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.4 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Borrower under this Section 2.4 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to either Borrower or a Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of either Borrower or any of the Lenders.
(fb) The provisions of this Section 2.4 2.14 are made for the benefit of the Lenders Administrative Agent and the Lender and their successors and assigns, and may be enforced by them from time to time against either any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders Administrative Agent, the Lender, 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 of the other Borrower Borrowers or to exhaust any remedies available to it or them against any of the other Borrower Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.4 2.14 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at .
(c) Each of the Borrowers hereby agrees that it will not enforce any timeof its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payment, payments made by it to the Administrative Agent or any part thereof, made in the Lenders with respect of to any of the Obligations is rescinded or must otherwise be restored or returned by the Lenders upon the insolvencyany Collateral, bankruptcy or reorganization of either until such time as all of the Borrowers, or otherwise, the provisions of this Section 2.4 will forthwith be reinstated and Obligations have been paid in effect as though such payment had not been made.
(g) Notwithstanding full in cash. Any claim which any provision Borrower may have against any other Borrower with respect to any payments to the contrary contained herein Administrative Agent or 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 of increases in the other Credit DocumentsObligations arising hereunder or thereunder, to the extent prior payment in full in cash of the obligations of either Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code)Obligations.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Cygnus Oil & Gas Corp)
