Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement. (B) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers. (C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 2 contracts
Samples: Loan and Security Agreement (Mmi Products Inc), Loan and Security Agreement (Mmi Products Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire such Borrower desires to utilize their its borrowing potential on a consolidated basis to the same extent possible if they were it was merged into a single corporate entity with all other Borrowers and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each such Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) to the extent provided herein agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations Obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover recover, without duplication, from any one or more of the Borrowers.
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7section, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7section, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7section. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 section that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7section, the Borrowers and Lenders Lender hereby agree and acknowledge that it is the intent of each Borrower and of Lenders Lender that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 2 contracts
Samples: Loan and Security Agreement (LSB Industries Inc), Loan and Security Agreement (LSB Industries Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances credit contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereofof the Loan Documents; (ii) agrees to fully and promptly perform all of its obligations hereunder under the Loan Documents with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Lenders on demand for and against any loss incurred by Collateral Agent and/or Lenders (other than a loss arising any Lender Lender’s willful misconduct or gross negligence) as a result of any of the obligations of any one or more of Borrowers under the Borrowers Loan Documents being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Lenders or any other Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Lenders would otherwise have been entitled to recover from any one or more of Borrowers. Each Borrower hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the Borrowerspayment and performance of all of the Obligations. If and to the extent that any Borrower fails to make any payment with respect to the Obligations as and when due or to perform any of its obligations in accordance with the terms of the Loan Documents, then in each such event the other Borrowers will make such payment with respect to, or perform, such obligations.
(Cc) The joint and several liability of each Borrower for the Obligations shall be absolute and unconditional irrespective of and shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations. Without limiting the generality of the foregoing, the obligations of each Borrower shall not be discharged or impaired or otherwise affected by:
(i) any change in the manner, place or terms of payment or performance and/or any change or extension of the time of payment or performance of, renewal or alteration of, any Obligation, any security therefor, or any liability incurred directly or indirectly in respect thereof, or any rescission of, or amendment, waiver or other modification of, or any consent to departure from any Loan Document, including any increase in the Obligations resulting from the extension of additional credit to any Borrower;
(ii) any sale, exchange, release, surrender, realization upon any property at any time pledged or mortgaged to secure any of the Obligations, and/or any offset against, or failure to perfect, or continue the perfection of, any lien in any such property, or delay in the perfection of any such lien, or any amendment or waiver of or consent to departure from any other guaranty for any of the Obligations;
(iii) the failure of Lenders to assert any claim or demand or to enforce any right or remedy against any Borrower or other Person under the provisions of any Loan Document;
(iv) any settlement or compromise of any Obligation, any security therefor or any liability incurred directly or indirectly in respect thereof, and any subordination of the payment of any part thereof to the payment of any obligation (whether due or not) of any other Borrower to creditors of such other Borrower other than any other Borrower;
(v) any manner of application of any collateral for the Obligations or proceeds thereof, to any of the Obligations, or any manner of sale or other disposition of any such collateral for all or any of the Obligations or any other assets of any Borrower;
(vi) any change, restructuring or termination of the existence of any Borrower; or
(vii) any other agreement or circumstance of any nature whatsoever that might in any manner or to any extent vary the risk of any Borrower, or that might otherwise at law or in equity constitute a defense available to, or a discharge of, the obligations of any Borrower, or a defense to, or discharge of, any Borrower or other Person relating to any of the Obligations.
(d) The joint and several liability of Borrowers shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower.
(e) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7the Loan Documents, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in an amount sufficient to pay its probable net liabilities on its existing Indebtedness (including Contingent Obligations) as the same become absolute and matured ("“Dated Liabilities"”) is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("“Dated Assets"”). To this end, end each Borrower under this Section 2.7, hereby (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, be (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7Borrower. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 2 contracts
Samples: Credit Agreement (Monaco Coach Corp /De/), Credit Agreement (Monaco Coach Corp /De/)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers Borrower being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.72.5, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("'Dated Liabilities"') is, and is to be, less than the amount of the aggregate of a fair valuation of its property Property as of such corresponding date ("'Dated Assets"'). To this end, each Borrower under this Section 2.72.5, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.subrogation
Appears in 2 contracts
Samples: Loan and Security Agreement (Index Inc), Loan and Security Agreement (Index Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Bank hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Bank this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances credit contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Bank for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereofof the Loan Documents; (ii) agrees to fully and promptly perform all of its obligations hereunder under the Loan Documents with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Bank on demand for and against any loss incurred by Collateral Agent and/or any Lender Bank as a result of any of the obligations of any one or more of Borrowers under the Borrowers Loan Documents being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Bank or any other Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Bank would otherwise have been entitled to recover from any one or more of Borrowers. Each Borrower hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the Borrowerspayment and performance of all of the Obligations. If and to the extent that any Borrower fails to make any payment with respect to the Obligations as and when due or to perform any of its obligations in accordance with the terms of the Loan Documents, then in each such event the other Borrowers will make such payment with respect to, or perform, such obligations.
(Cc) The joint and several liability of each Borrower for the Obligations shall be absolute and unconditional irrespective of and shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations. Without limiting the generality of the foregoing, the obligations of each Borrower shall not be discharged or impaired or otherwise affected by:
(i) any change in the manner, place or terms of payment or performance and/or any change or extension of the time of payment or performance of, renewal or alteration of, any Obligation, any security therefor, or any liability incurred directly or indirectly in respect thereof, or any rescission of, or amendment, waiver or other modification of, or any consent to departure from any Loan Document, including any increase in the Obligations resulting from the extension of additional credit to any of Borrowers;
(ii) any sale, exchange, release, surrender, realization upon any property at any time pledged or mortgaged to secure any of the Obligations, and/or any offset against, or failure to perfect, or continue the perfection of, any lien in any such property, or delay in the perfection of any such lien, or any amendment or waiver of or consent to departure from any other guaranty for any of the Obligations;
(iii) the failure of Bank to assert any claim or demand or to enforce any right or remedy against any Borrower or any other Person under the provisions of any Loan Document;
(iv) any settlement or compromise of any Obligation, any security therefor or any liability incurred directly or indirectly in respect thereof, and any subordination of the payment of any part thereof to the payment of any obligation (whether due or not) of any other Borrower to creditors of such other Borrower other than any other Borrower;
(v) any manner of application of any collateral for the Obligations or proceeds thereof, to any of the Obligations, or any manner of sale or other disposition of any such collateral for all or any of the Obligations or any other assets of any Borrower;
(vi) any change, restructuring or termination of the existence of any Borrower; or
(vii) any other agreement or circumstance of any nature whatsoever that might in any manner or to any extent vary the risk of any Borrower, or that might otherwise at law or in equity constitute a defense available to, or a discharge of, the obligations of any Borrower, or a defense to, or discharge of, any Borrower or any other Person relating to any of the Obligations.
(d) The joint and several liability of Borrowers shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower.
(e) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7the Loan Documents, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in an amount sufficient to pay its probable net liabilities on its existing Indebtedness (including contingent liabilities) as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, end each Borrower under this Section 2.7, hereby (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, be (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7Borrower. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Samples: Credit Agreement (Ajay Sports Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, the Borrowers desire to utilize their borrowing potential on a consolidated combined basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it each Borrower has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral the Administrative Agent and the Lenders hereunder and a desire of the Borrowers each Borrower that each Borrower execute and deliver to Collateral the Administrative Agent and the Lenders this Agreement; and (iv) Borrowers have each Borrower has requested and bargained for the structure and terms of and security for the advances Borrowings contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral the Administrative Agent and the Lenders for the full and prompt payment and performance of the Obligations and the performance by obligations of each Borrower of its obligations hereunder in accordance with the terms hereofunder this Agreement that may specify that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral the Administrative Agent and/or any Lender and each Lender, on demand demand, for and against any loss incurred by Collateral the Administrative Agent and/or or any Lender as a result of any of the obligations of any one or more of Borrower (the Borrowers “subject Borrower”) being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender the subject Borrower or any Person, the amount of such loss being the amount which Collateral the Administrative Agent and/or or the Lenders (or any Lender of them) would otherwise have been entitled to recover from any one or more of the Borrowers.
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability liabilities hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant basis related to any applicable federal or state law dealing with fraudulent conveyance conveyances or fraudulent transfer lawsany other law related to transfers for less CHAPARRAL ENERGY, L.L.C. CREDIT AGREEMENT than fair or reasonably equivalent value. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7, 3.06 together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount amounts sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("“Dated Liabilities"”) is, is and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("“Dated Assets"”). To this end, each Borrower under this Section 2.7, 3.06 (i) grants to and recognizes in each other Borrower, Borrower ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower orBorrower, as the case may be, and (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.73.06. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers each Borrower will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 3.06 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder.
(d) Each Borrower agrees and acknowledges that the present structure of the credit facilities detailed in this Agreement is based in part upon the financial and other information presently known to the Administrative Agent and the Lenders regarding each Borrower, the corporate or other organizational structure of each Borrower, and the present financial condition of each Borrower. In Upon or after the occurrence of an Event of Default and so long as it is continuing, each Borrower hereby agrees that the Required Lenders shall have (in addition to and not any other right provided for in limitation the Loan Documents) the right, in their sole credit judgment, to require that any or all of the foregoing provisions of this Section 2.7, following changes be made to these credit facilities: (i) restrict loans and advances between the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance withBorrowers, and not (ii) establish such other procedures (in consultation with the Borrowers) as shall be voidable pursuant to, applicable fraudulent conveyance reasonably deemed by the Required Lenders to be useful in tracking where Loans are made under this Agreement and fraudulent transfer lawsthe source of payments received by the Lenders on such Loans.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoeverwhatsoever (subject to the Lender's obligations under the terms of this Agreement and the Loan Documents), whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more both of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.71.4, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.together
Appears in 1 contract
Samples: Loan and Security Agreement (Bayard Drilling Technologies Inc)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states acknowledges and acknowledges agrees that: (i) pursuant to this Agreement, the Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsbasis; (ii) it each Borrower has determined that it will benefit specifically and materially from the advances of credit Credit Extensions contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral the Administrative Agent and the Lenders hereunder and a desire of the Borrowers each Borrower that each Borrower execute and deliver to Collateral Agent and the Lenders this AgreementAgreement and the other Loan Documents to which it is a party; and (iv) Borrowers have each Borrower has requested and bargained for the structure and terms of and security for the advances Credit Extensions contemplated by this AgreementAgreement and the other Loan Documents.
(Ba) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral the Administrative Agent and the Lenders for the full and prompt payment and performance of the Obligations and the performance by of each Borrower of its obligations hereunder in accordance with the terms hereofunder this Agreement and each other Loan Document notwithstanding that such Loan Document may specify that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit Credit Extension made hereunder as if such advance Credit Extension had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral the Administrative Agent and/or any Lender and each Lender, on demand demand, for and against any loss incurred by Collateral the Administrative Agent and/or or any Lender as a result of any of the obligations Obligations of any one or more of Borrower (the Borrowers “subject Borrower”) being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender the subject Borrower or any other Person, the amount of such loss being the amount which Collateral the Administrative Agent and/or or the Lenders (or any Lender of them) would otherwise have been entitled to recover from any one or more of the Borrowerssuch subject Borrower.
(Cb) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder liabilities under this Agreement of no one of them be subject to challenge on any basis, including, without limitation, pursuant basis related to any applicable federal or state law dealing with fraudulent conveyance conveyances or fraudulent transfer lawsany other law related to transfers for less than fair or reasonably equivalent value. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.72.3.3, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount amounts sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("“Dated Liabilities"”) is, is and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("“Dated Assets"”). To this end, each Borrower under this Section 2.7, 2.3.3
(i) grants to and recognizes in each other Borrower, Borrower ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower oror Borrowers, as the case may be, and (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.72.3.3. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers each Borrower will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 2.3.3 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to .
(c) Each Borrower agrees and not in limitation acknowledges that the present structure of the foregoing provisions of credit facilities detailed in this Section 2.7Agreement is based in part upon the financial and other information presently known to the Administrative Agent and the Lenders regarding each Borrower, the Borrowers and Lenders hereby agree and acknowledge that it is the intent corporate or other organizational structure of each Borrower and the present financial condition of Lenders each Borrower. Upon the occurrence of an Event of Default and so long as it is continuing, each Borrower hereby agrees that the obligations Required Lenders shall have the right, in their sole credit judgment, to require that any or all of the following changes be made to the credit facilities contemplated in this Agreement: (i) restrict loans and advances between the Borrowers, (ii) establish separate Controlled Deposit Accounts, Concentration Accounts and/or Obligation Accounts for each Borrower, (iii) separate the Revolving Credit Loans, Swing Line Loans and Letters of Credit into separate Revolving Credit Loans, Swing Line Loans and Letters of Credit to each of the Borrowers as shall be determined by the Required Lenders and (iv) establish such other procedures as shall be reasonably deemed by the Required Lenders to be useful in tracking where Revolving Credit Loans, Swing Line Loans and Letters of Credit are made under this Agreement and the source of payments received by the Lenders on such Credit Extensions.
(d) Each of the Borrowers hereby irrevocably and unconditionally agrees that it is jointly and severally obligated in respect of all Credit Extensions and other Obligations (including Letter of Credit Obligations), and that the aggregate amount of credit available hereunder to any of the Borrowers at any time shall be determined by taking into account all Letters of Credit Outstandings and all Loans outstanding, regardless of which of the Borrowers may be the beneficiary of any Letters of Credit or received the proceeds of any of the Borrowings. By executing this Agreement each of the Borrowers confirms to the other parties to this Agreement that the Company shall (and is hereby duly appointed by each of the Borrowers to) act as agent for the Borrowers for all purposes of requesting Loans and Letters of Credit, for purposes of allocation (to the extent permitted herein) of Letters of Credit and the proceeds of Loans, and for all other purposes of this Agreement pursuant to any provision identifying the Borrowers or any of them to take any action or receive any communication (regarding uses and the availability of credit hereunder, and otherwise). Each of the Borrowers further agrees that each of the Lenders and the Administrative Agent shall be entitled to deal as to these matters only with the Company and (to the extent contemplated herein) to act as to these matters in accordance with instructions or other communications from the Company. Neither the Lenders nor the Administrative Agent shall have any responsibility to any Borrower for acting as provided in this provision, and the Obligations of each Borrower hereunder be in all respects in compliance with, and of the Borrowers to the Administrative Agent or the Lenders shall not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer lawsaffected by any matter relating to acts or omissions of the Company relating to Credit Extensions or otherwise as agent for the Borrowers hereunder.
Appears in 1 contract
Samples: Revolving Credit Agreement (Sterling Chemicals Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, the Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it each Borrower has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral the Administrative Agent and Lenders hereunder and a desire of the Borrowers each Borrower that each Borrower execute and deliver to Collateral Administrative Agent and Lenders this Agreement; and (iv) Borrowers have each Borrower has requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral the Administrative Agent and the Lenders for the full and prompt payment and performance of the Obligations and the performance by obligations of each Borrower of its obligations hereunder in accordance with the terms hereofunder this Agreement and each other Loan Document that may specify that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral the Administrative Agent and/or any Lender and each Lender, on demand for and against any loss incurred by Collateral the Administrative Agent and/or or any Lender as a result of any of the obligations of any one or more of Borrower (the Borrowers “Subject Borrower”) being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender the Subject Borrower or any Person, the amount of such loss being the amount which Collateral the Administrative Agent and/or or the Lenders (or any Lender of them) would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability liabilities hereunder and under the other Loan Documents of no one of them be subject to challenge on any basis, including, without limitation, pursuant basis related to any applicable federal or state law dealing with fraudulent conveyance conveyances or fraudulent transfer lawsany other law related to transfers for less than fair or reasonably equivalent value. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7, 2.22 together with all of its other liabilities to all Persons persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("“Dated Liabilities"”) is, is and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("“Dated Assets"”). To this end, each Borrower under this Section 2.7, 2.22 (i) grants to and recognizes in each other Borrower, Borrower ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate rights of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, and (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.72.22. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers each Borrower will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 2.22 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to .
(d) Each Borrower agrees and not in limitation acknowledges that the present structure of the foregoing provisions of credit facilities detailed in this Section 2.7Agreement is based in part upon the financial and other information presently known to the Administrative Agent and the Lenders regarding each Borrower, the Borrowers corporate structure of the Borrowers, and Lenders hereby agree and acknowledge that it is the intent present financial condition of each Borrower. Each Borrower and of Lenders hereby agrees that the obligations Required Lenders shall have the right, in their sole credit judgment, to require that any or all of the following changes be made to these credit facilities: (i) further restrict loans and advances between the Borrowers, (ii) establish separate lockbox and Controlled Disbursement Accounts for each Borrower hereunder Borrower, (iii) separate the Swingline Loans and Revolving Loans into separate revolving credit loans to each of the Borrowers as shall be in all respects in compliance withdetermined by the Required Lenders, and not (iv) establish such other procedures as shall be voidable pursuant to, applicable fraudulent conveyance reasonably deemed by the Required Lenders to be useful in tracking where Loans are made under this Agreement and fraudulent transfer lawsthe source of payments received by the Lenders on such Loans.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the ObligationsIndebtedness; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations Indebtedness of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations Indebtedness and the performance by each Borrower of its obligations Indebtedness hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations Indebtedness hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations Indebtedness of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations Indebtedness and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.78.28, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.78.28, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.78.28. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 8.28 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations Indebtedness hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.78.28, the Borrowers and Lenders Lender hereby agree and acknowledge that it is the intent of each Borrower and of Lenders Lender that the obligations Indebtedness of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
(D) Notwithstanding the foregoing, and the Borrowers' agreement to be jointly and severally liable for payment of all the Indebtedness, each of the Borrowers is a separate and distinct corporation. Lender acknowledges and agrees that each Borrower is a separate and distinct entity and further agrees not to challenge or dispute the separate existence of each Borrower.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of all the Obligations and the full and prompt performance by each of all obligations of any Borrower of its obligations hereunder under this Agreement or any other Loan Document, notwithstanding anything herein or in accordance with the terms hereofany other Loan Document specifying that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations Obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.72.5, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, end each Borrower under this Section 2.7, 2.5
(i) grants to and recognizes in each the other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, be (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers Borrower in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.72.5. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 2.5 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Lenders on demand for and against any loss incurred by Collateral Agent and/or any Lender Lenders as a result of any of the obligations of any one or more of the Borrowers Borrower being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Agent, Lenders or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Lenders would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) Borrower. It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.72.8, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.72.8, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers Borrower in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.72.8. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 2.8 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Samples: Loan and Security Agreement (Cal Dive International Inc)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate organizational entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and the Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and the Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations Obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender and the Lenders on demand for and against any loss incurred by Collateral Agent and/or any Lender or the Lenders as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or the Lenders or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender or the Lenders would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them either Borrower not be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.710.19, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("‘Dated Liabilities"’) is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("‘Dated Assets"’). To this end, each Borrower under this Section 2.710.19, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.710.19. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 10.19 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.710.19, the Borrowers and Lenders Lender hereby agree and acknowledge that it is the intent of each Borrower and of Lenders Lender that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.”
SECTION 2.07 Addition of Section 10.20 to the Loan Agreement; “Structure of Credit Facility”. Effective as of the Effective Date, a new Section 10.20 is added to the Loan Agreement to read in its entirety as follows:
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder Foothill and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Foothill this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Foothill for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Foothill on demand for and against any loss incurred by Collateral Agent and/or any Lender Foothill as a result of any of the obligations of any one or more of the Borrowers Borrower being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Foothill or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Foothill would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7SECTION 2.17, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated LiabilitiesDATED LIABILITIES") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated AssetsDATED ASSETS"). To this end, each Borrower under this Section 2.7, SECTION 2.17
(i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.,
Appears in 1 contract
Samples: Loan and Security Agreement (Ultimate Electronics Inc)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of a credit facilities facility which would not otherwise be available to such any Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations Obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations Obligations and liability hereunder of no one neither of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.71.4, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.this
Appears in 1 contract
Samples: Loan and Security Agreement (Avalon Community Services Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations Obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.72.5, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.72.5, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.72.5. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 2.5 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.72.5, the Borrowers and Lenders Lender hereby agree and acknowledge that it is the intent of each Borrower and of Lenders Lender that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
(d) Notwithstanding the foregoing, and the Borrowers' agreement to be jointly and severally liable for payment of all the Obligations, each of the Borrowers is a separate and distinct corporation. Lender acknowledges and agrees that each Borrower is a separate and distinct entity and further agrees not to challenge or dispute the separate existence of each Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Sport Supply Group Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations Obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.72.5, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("“Dated Liabilities"”) is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("“Dated Assets"”). To this end, each Borrower under this Section 2.72.5, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.72.5. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 2.5 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.72.5, the Borrowers and Lenders Lender hereby agree and acknowledge that it is the intent of each Borrower and of Lenders Lender that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
(d) Notwithstanding the foregoing, and the Borrowers’ agreement to be jointly and severally liable for payment of all the Obligations, each of the Borrowers is a separate and distinct corporation. Lender acknowledges and agrees that each Borrower is a separate and distinct entity and further agrees not to challenge or dispute the separate existence of each Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Collegiate Pacific Inc)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate organizational entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and the Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and the Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations Obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender and the Lenders on demand for and against any loss incurred by Collateral Agent and/or any Lender or the Lenders as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or the Lenders or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender or the Lenders would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them either Borrower not be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.710.19, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("'Dated Liabilities"') is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("'Dated Assets"'). To this end, each Borrower under this Section 2.710.19, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws10.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Senior Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) . Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Senior Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Lenders on demand for and against any loss incurred by Collateral Agent and/or any Lender Lenders as a result of any of the obligations Senior Obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Lenders or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Lenders would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) . It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7, 12.16 together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.712.16, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.712.16. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 12.16 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.712.16, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws. Notwithstanding the foregoing, and the Borrowers' agreement to be jointly and severally liable for payment of all the Senior Obligations, each of the Borrowers is a separate and distinct corporation. Lenders acknowledges and agrees that each Borrower is a separate and distinct entity and further agrees not to challenge or dispute the separate existence of each Borrower.
Appears in 1 contract
Samples: Loan Agreement (LSB Industries Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances credit contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereofof the Loan Documents; (ii) agrees to fully and promptly perform all of its obligations hereunder under the Loan Documents with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Lenders on demand for and against any loss incurred by Collateral Agent and/or any Lender Lenders (other than a loss arising from Lenders' willful misconduct or gross negligence) as a result of any of the obligations of any one or more of Borrowers under the Borrowers Loan Documents being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Lenders or any other Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Lenders would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each . Each Borrower that the indebtednesshereby irrevocably and unconditionally accepts, obligations and liability hereunder of no one of them be subject to challenge on any basisnot merely as a surety but also as a co-debtor, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition liability with each other Borrower with respect to the payment and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.performance
Appears in 1 contract
Samples: Credit Agreement (Penford Corp)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: (i) agrees that that, subject to the provisions of SECTION 1.6 hereof, it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender and Lenders on demand for and against any loss incurred by Collateral Agent and/or any Lender or Lenders as a result of any of the obligations of any one or more of the Borrowers Borrower being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any or such Lender would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7SECTION 2.2, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated LiabilitiesDATED LIABILITIES") is, and is to be, less than the amount of the aggregate of a fair valuation of its property Property as of such corresponding date ("Dated AssetsDATED ASSETS"). To this end, each Borrower under this Section 2.7, SECTION 2.2
(i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers Borrower in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer lawsSECTION 2.
Appears in 1 contract
Samples: Loan and Security Agreement (Brazos Sportswear Inc /De/)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of a credit facilities facility which would not otherwise be available to such any Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations Obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations Obligations and liability hereunder of no one neither of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.71.4, together with all ----------- of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of ----------------- a fair valuation of its property as of such corresponding date ("Dated Assets"). ------------ To this end, each Borrower under this Section 2.71.4, (i) grants to and recognizes ----------- in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws1.
Appears in 1 contract
Samples: Loan and Security Agreement (Avalon Community Services Inc)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers Borrower being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section SECTION 2.7, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated LiabilitiesDATED LIABILITIES ") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated AssetsDATED ASSETS"). To this end, each Borrower under this Section SECTION 2.7, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers Borrower in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer lawsSECTION 2.
Appears in 1 contract
Samples: Loan and Security Agreement (Cal Dive International Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges Parent state and acknowledge that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it each of Borrower and Parent has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers each Borrower and Parent that each Borrower and Parent execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have each Borrower and Parent has requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each Borrower and Parent hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment and performance of the Obligations and the performance by Obligation of each Borrower of its obligations hereunder in accordance with the terms hereofunder this Agreement and each other Loan Document that may specify that particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one Borrower or more of the Borrowers Parent being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one the other Borrower or more of the BorrowersParent (as applicable).
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability liabilities hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant basis related to any applicable federal or state law dealing with fraudulent conveyance conveyances or fraudulent transfer lawsany other law related to transfers for less than fair or reasonably equivalent value. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7SECTION 2.18, together with all of its other liabilities to all Persons persons as ------------ of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("Dated Liabilities") is, is and is to be, less than the amount ----------------- of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7, SECTION 2.18 (i) ------------ ------------ grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.acknowledges
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.71.3, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.71.3, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws1.
Appears in 1 contract
Samples: Loan and Security Agreement (Black Warrior Wireline Corp)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; ;
(ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7SECTION 1.5, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated LiabilitiesDATED LIABILITIES") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated AssetsDATED ASSETS"). To this end, each Borrower under this Section 2.7SECTION 1.5, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer lawsSECTION 1.
Appears in 1 contract
Samples: Loan and Security Agreement (Advanced Technical Products Inc)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states The Borrowers shall have joint and acknowledges that: (i) pursuant to this Agreement, several liability in respect of all Obligations. The Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and hereby acknowledge that this Amended Loan Agreement reflects is the establishment independent and several obligation of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that may be enforced against each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoeverseparately, whether or not known enforcement of any right or remedy hereunder has been sought against the other Borrower. Each Borrower hereby expressly waives, with respect to Collateral any extension of credit made to the other Borrower hereunder and any of the amounts owing hereunder by such other Borrower in respect of such extension of credit (collectively, the "Other Borrower Obligations"), diligence presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Agent and/or or any Lender exhaust any right, power or remedy or proceed against such other Borrower under this Amended Loan Agreement or the Notes or any Personother agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of such Other Borrower Obligations. The Borrowers hereby agree, as between themselves, that if either Borrower (an "Excess Funding Borrower") shall repay Obligations in excess of the portion of the then outstanding Obligations which have arisen in respect of extensions of credit the proceeds of which have been advanced to or for the benefit of the Excess Funding Borrower, the other Borrower shall, on demand (but subject to the next sentence hereof), pay to the Excess Funding Borrower an amount equal to its respective relative shares of such loss being excess (such relative shares to be determined based upon the amount respective relative portion of the then outstanding Obligations that have arisen in respect of extensions of credit the proceeds of which Collateral Agent and/or any Lender would otherwise have been entitled advanced to recover from any one or more for the respective benefit of the Borrowers.
(C) It is the intent other Borrower). The payment obligation of each either Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Excess Funding Borrower under this Section 2.7, together with all 11.21 shall be subordinate and subject in right of its other liabilities payment to all Persons as the prior payment in full of the date hereof and as Obligations of any the other date on which a transfer or conveyance is deemed to occur by virtue Borrower under the other provisions of this AgreementAmended Loan Agreement and such Excess Funding Borrower shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all such Obligations; in addition, calculated in amount sufficient no Borrower shall be obligated to pay its probable net liabilities on its existing Indebtedness as to the same become absolute and matured ("Dated Liabilities") is, and is to be, less Excess Funding Borrower an amount under this Section 11.21 greater than the amount of which, when taken together with the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To the Obligations paid by it under this end, each Borrower Amended Loan Agreement and all other payments under this Section 2.7, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein11.21, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each portion of the other Borrowers then outstanding Obligations which have arisen in respect of extensions of credit the amount, if any, by proceeds of which have been advanced to or for the Dated Liabilities benefit of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, the Borrowers desire to utilize their borrowing potential on a consolidated combined basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it each Borrower has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral the Administrative Agent and the Lenders hereunder and a desire of the Borrowers each Borrower that each Borrower execute and deliver to Collateral the Administrative Agent and the Lenders this Agreement; and (iv) Borrowers have each Borrower has requested and bargained for the structure and terms of and security for the advances Borrowings contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral the Administrative Agent and the Lenders for the full and prompt payment and performance of the Obligations and the performance by obligations of each Borrower of its obligations hereunder in accordance with the terms hereofunder this Agreement that may specify that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral the Administrative Agent and/or any Lender and each Lender, on demand demand, for and against any loss incurred by Collateral the Administrative Agent and/or or any Lender as a result of any of the obligations of any one or more of Borrower (the Borrowers “Subject Borrower”) being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender the Subject Borrower or any Person, the amount of such loss being the amount which Collateral the Administrative Agent and/or or the Lenders (or any Lender of them) would otherwise have been entitled to recover from any one or more of the Borrowers.. CHAPARRAL ENERGY, L.L.C. EIGHTH RESTATED CREDIT AGREEMENT
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability liabilities hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant basis related to any applicable federal or state law dealing with fraudulent conveyance conveyances or fraudulent transfer lawsany other law related to transfers for less than fair or reasonably equivalent value. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7, 3.06 together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount amounts sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("“Dated Liabilities"”) is, is and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("“Dated Assets"”). To this end, each Borrower under this Section 2.7, 3.06 (i) grants to and recognizes in each other Borrower, Borrower ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower orBorrower, as the case may be, and (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.73.06. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers each Borrower will recognize, to at least the same extent of their its aggregate recognition of liabilities hereunder, their its rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 3.06 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder.
(d) Each Borrower agrees and acknowledges that the present structure of the credit facilities detailed in this Agreement is based in part upon the financial and other information presently known to the Administrative Agent and the Lenders regarding each Borrower, the corporate or other organizational structure of each Borrower, and the present financial condition of each Borrower. In Upon or after the occurrence of an Event of Default and so long as it is continuing, each Borrower hereby agrees that the Majority Lenders shall have (in addition to and not any other right provided for in limitation the Loan Documents) the right, in their sole credit judgment, to require that any or all of the foregoing provisions following changes be made to these credit facilities: (i) restrict loans and advances between the Borrowers, and (ii) establish such other procedures (in consultation with the Borrowers) as shall be reasonably deemed by the Majority Lenders to be useful in tracking where Loans are made under this Agreement and the source of payments received by the Lenders on such Loans.
(e) Each Borrower waives any right to require the Administrative Agent or any Lender to proceed against any other Person, exhaust any Collateral or security for the Indebtedness, or to have any other Borrower or Credit Party joined with such Borrower in any suit arising out of the Indebtedness, this Agreement or any other Loan Document, or pursue any other remedy in the Administrative Agent’s or any Lender’s power. Each Borrower further waives any and all notice of acceptance of this Section 2.7Agreement and of the creation, modification, rearrangement, renewal or extension for any period of any of the Borrowers Indebtedness from time to time. Each Borrower further waives any defense arising by reason of any disability or other defense, other than the defense of payment, of any other Borrower or Credit Party or by reason of the cessation from any cause whatsoever of the liability of any other Borrower or Credit Party. Until all of the Indebtedness shall have been paid in full, no Borrower shall have any right to subrogation and Lenders hereby agree and acknowledge that it is the intent of each Borrower waives the right to enforce any remedy which the Administrative Agent or any Lender has or may hereafter have against any other Borrower or Credit Party, and waives any benefit of Lenders that and any right to participate in any other security whatsoever now or hereafter held by the Administrative Agent. Each Borrower authorizes the Administrative Agent and each Lender, without notice or demand and without any reservation of rights against such Borrower and without affecting such Borrower’s liability hereunder or on the Indebtedness, from time to time to (i) take or hold any other Property of any type from any other Person as security for the Indebtedness, and exchange, enforce, waive and release any or all of such other Property; (ii) renew, extend for any period, accelerate, modify, compromise, settle or release any of the obligations of each any other Borrower hereunder be or Credit Party in respect to any or all respects in compliance withof the Indebtedness or other security for the Indebtedness; (iii) waive, enforce, modify, amend or supplement any of the provisions of any Loan Document with any Person other than such Borrower; and not be voidable pursuant to(iv) release or substitute any other Borrower or Credit Party. CHAPARRAL ENERGY, applicable fraudulent conveyance and fraudulent transfer laws.L.L.C. EIGHTH RESTATED CREDIT AGREEMENT
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7SECTION 1.5, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated LiabilitiesDATED LIABILITIES") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated AssetsDATED ASSETS"). To this end, each Borrower under this Section 2.7SECTION 1.5, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.SECTION
Appears in 1 contract
Samples: Loan and Security Agreement (Advanced Technical Products Inc)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender and Lenders on demand for and against any loss incurred by Collateral Agent and/or any Lender or Lenders as a result of any of the obligations Obligations of any one or more of the Borrowers Borrower being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any or such Lender would otherwise have been entitled to recover from any Borrower; (iv) agrees that a Loan to one or more of Borrower's account is a Loan to all the Borrowers; and (v) that until notice to the contrary is given to Agent, Brazos is appointed by the Borrowers to act as Agent for and on behalf of all the Borrowers in connection with the DIP facility, including, without limitation, in connection with the Loans.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7SECTION 2.2, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7, other
(i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers Borrower in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7SECTION 2.2; PROVIDED, HOWEVER, that each Borrower's rights of subrogation and contribution are subordinated in all respects to the full, final and indefeasible payment of the Obligations. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 SECTION 2.2 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an any arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Samples: Loan and Security Agreement (Brazos Sportswear Inc /De/)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of all the Obligations and the full and prompt performance by each of all obligations of any Borrower of its obligations hereunder under this Agreement or any other Loan Document, notwithstanding anything herein or in accordance with the terms hereofany other Loan Document specifying that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any and each Lender on demand for and against any loss incurred by Collateral Agent and/or any or such Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or Lenders or any Person, the amount of such loss being the amount which Collateral Agent and/or any or such Lender would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(C) It Notwithstanding anything herein to the contrary, it is the desire and intent of each Borrower, the Lenders and the Agent that this Agreement shall be enforced against each Borrower that to the indebtednessfullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. If, however, and to the extent that, the obligations and liability hereunder of no one of them a Borrower under this Agreement shall be subject adjudicated to challenge on be invalid or unenforceable for any basis, reason (including, without limitation, pursuant to because of any applicable state or federal law relating to fraudulent conveyance conveyances or fraudulent transfer laws. Accordinglytransfers), as of the date hereof, the liability of each Borrower under this Section 2.7, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than then the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities Obligations of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than shall be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint reduced and several obligations hereunder. In addition to and not in limitation such Borrower shall pay the maximum amount of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder Obligations which would be in all respects in compliance with, and not be voidable pursuant to, permissible under applicable fraudulent conveyance and fraudulent transfer lawslaw.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of all the Obligations and the full and prompt performance by each of all obligations of any Borrower of its obligations hereunder under this Agreement or any other Loan Document, notwithstanding anything herein or in accordance with the terms hereofany other Loan Document specifying that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or Lender or any Person, the amount of such loss being the amount which Lender would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.72.8, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, end each Borrower under this Section 2.7, 2.8
(i) grants to and recognizes in each the other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, be (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers Borrower in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.72.8. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 2.8 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Samples: Loan and Security Agreement (Lowrance Electronics Inc)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.71.3, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.71.3, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.other
Appears in 1 contract
Samples: Loan and Security Agreement (Black Warrior Wireline Corp)
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders each Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender and Lenders on demand for and against any loss incurred by Collateral Agent and/or any Lender or Lenders as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or Lenders or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Lenders would otherwise have been entitled to recover from any one or more of the BorrowersBorrowers whose obligation becomes void, voidable, unenforceable or ineffective.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.71.6, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.71.6, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.71.6. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 1.6 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.71.6, the Borrowers Borrowers, Agent and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders Agent and each Lender that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Samples: Loan and Security Agreement (Industrial Data Systems Corp)
Joint and Several Liability; Rights of Contribution. (Aa) Borrowers' Obligations constitute the joint and several obligations of each Borrower secured by the Security Interests. Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to that the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all proceeds of the Obligations; (ii) it has determined that it will Loans are a direct and indirect benefit specifically and materially from the advances to all Borrowers. The provisions of credit contemplated by this Agreement; (iii) it is both a condition precedent to Section 12.24 shall in no way limit the obligations of Collateral Agent and Lenders any Borrower hereunder and a desire or under any of the Borrowers that other Loan Instruments and each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally shall remain liable to Collateral Agent and Lenders for the full and prompt amount of Borrowers' Obligations.
(b) Each Borrower agrees (subject to clause (c) below) that in the event a payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for and against any loss incurred by Collateral Agent and/or any Lender as a result of any of the obligations Borrowers' Obligations shall be made by any Borrower or any asset of any one Borrower shall be sold to satisfy a claim of Agent or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or to receive any Personsuch payment, each other Borrower (the "Contributing Borrower") shall indemnify such Borrower (the "Claiming Borrower") in an amount equal to the amount of such loss being payment or the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more greater of the Borrowers.
(C) It is book value or the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as market value of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower orasset, as the case may be, (ii) acknowledges receipt multiplied by a fraction, the numerator of and recognizes its right to subrogation and contribution ratably from each which shall be the net worth of the Contributing Borrower on the date hereof and the denominator of which shall be the aggregate net worth of all Borrowers on such date. A Contributing Borrower making any payment to the Claiming Borrower pursuant hereto shall be subrogated to the rights of the Claiming Borrower to the extent of such payment.
(c) No Borrower shall exercise any rights which it may acquire by way of subrogation hereunder to the rights of any other Borrowers Borrower or otherwise in equity or at law by any payment made hereunder or otherwise, nor shall any Borrower seek or be entitled to seek any contribution or reimbursement from any other Borrower in respect of payments made by such other Borrower in respect of Borrowers' Obligations until Borrowers' Obligations have been indefeasibly paid and performed in full. If any amounts shall be paid to any Borrower on account of such subrogation or contribution rights at any time prior to the amountdate Borrowers' Obligations have been indefeasibly paid and performed in full, if anysuch amount shall be held in trust for Agent and Lenders, by which the Dated Liabilities segregated from other funds of such Borrower, but for and shall, forthwith upon receipt by such Borrower, be turned over to Agent in the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of exact form received by such Borrower under this (duly endorsed by such Borrower to Agent, if required), for application to Borrowers' Obligations in accordance with Section 2.78.4 hereof. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective [remainder of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.page intentionally left blank]
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: :
(i) pursuant to this Agreementthe Loan Documents, Borrowers desire each Borrower desires to utilize their its borrowing potential on a consolidated basis with the other Borrowers to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers each Borrower that each Borrower execute and deliver to Collateral Agent and Lenders this Agreementthe Loan Documents; and (iv) the Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of all the Obligations and the full and prompt performance by each Borrower of its all obligations hereunder of all Borrowers under the Loan Documents, notwithstanding anything contained in accordance with the terms hereofany Loan Document specifying that a particular party is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Lenders on demand for and against any loss incurred by Collateral Agent and/or any Lender Lenders as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Lenders or any Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, each Borrower under this Section 2.7, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Samples: Post Petition Loan and Security Agreement (Interdent Inc)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible as if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Lender this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances credit contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Lender for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereofof the Loan Documents; (ii) agrees to fully and promptly perform all of its obligations hereunder under the Loan Documents with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender on demand for from and against any loss incurred by Collateral Agent and/or any Lender (other than a loss arising from Lender's willful misconduct or gross negligence) as a result of any of the obligations of any one or more of Borrower under the Borrowers Loan Documents being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender or any other Person, the amount of such loss being the amount which Collateral Agent and/or any Lender would otherwise have been entitled to recover from any one or more such Borrower. Each Borrower 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 BorrowersObligations. If and to the extent that either Borrower fails to make any payment with respect to the Obligations as and when due or to perform any of its obligations in accordance with the terms of the Loan Documents, then in each such event the other Borrower will make such payment with respect to, or perform, such obligations.
(Cc) The joint and several liability of each Borrower for the Obligations shall be absolute and unconditional irrespective of and shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations. Without limiting the generality of the foregoing, the obligations of each Borrower shall not, except to the extent of payment received, be discharged or impaired or otherwise affected by:
(i) any change in the manner, place or terms of payment or performance and/or any change or extension of the time of payment or performance of, renewal or alteration of, any Obligation, any security therefor, or any liability incurred directly or indirectly in respect thereof, or any rescission of, or amendment, waiver or other modification of, or any consent to departure from any Loan Document, including any increase in the Obligations resulting from the extension of additional credit to any Borrower;
(ii) any sale, exchange, release, surrender, realization upon any property at any time pledged or mortgaged to secure any of the Obligations, and/or any offset against, or failure to perfect, or continue the perfection of, any lien in any such property, or delay in the perfection of any such lien, or any amendment or waiver of or consent to departure from any other guaranty for any of the Obligations;
(iii) the failure of Lender to assert any claim or demand or to enforce any right or remedy against any Borrower or other Person under the provisions of any Loan Document;
(iv) any settlement or compromise of any Obligation, any security therefor or any liability incurred directly or indirectly in respect thereof, and any subordination of the payment of any part thereof to the payment of any obligation (whether due or not) of any other Borrower to creditors of such other Borrower other than any other Borrower;
(v) any manner of application of any collateral for the Obligations or proceeds thereof, to any of the Obligations, or any manner of sale or other disposition of any such collateral for all or any of the Obligations or any other assets of any Borrower;
(vi) any change, restructuring or termination of the existence of any Borrower; or
(vii) any other agreement or circumstance of any nature whatsoever that might in any manner or to any extent vary the risk of any Borrower, or that might otherwise at law or in equity constitute a defense available to, or a discharge of, the obligations of any Borrower, or a defense to, or discharge of, any Borrower or other Person relating to any of the Obligations.
(d) The joint and several liability of Borrowers shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower.
(e) It is the intent of each Borrower Borrowers that the indebtedness, obligations and liability hereunder of no one neither of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7the Loan Documents, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in an amount sufficient to pay its probable net liabilities on its existing Indebtedness (including contingent liabilities) as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, end each Borrower under this Section 2.7, hereby (i) grants to and recognizes in each the other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, be (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7Borrower. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, the Borrowers desire to utilize their borrowing potential on a consolidated combined basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it each Borrower has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral the Administrative Agent and the Lenders hereunder and a desire of the Borrowers each Borrower that each Borrower execute and deliver to Collateral the Administrative Agent and the Lenders this Agreement; and (iv) Borrowers have each Borrower has requested and bargained for the structure and terms of and security for the advances Borrowings contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral the Administrative Agent and the Lenders for the full and prompt payment and performance of the Obligations and the performance by obligations of each Borrower of its obligations hereunder in accordance with the terms hereofunder this Agreement that may specify that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral the Administrative Agent and/or any Lender and each Lender, on demand demand, for and against any loss incurred by Collateral the Administrative Agent and/or or any Lender as a result of any of the obligations of any one or more of Borrower (the Borrowers “subject Borrower”) being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender the subject Borrower or any Person, the amount of such loss being the amount which Collateral the Administrative Agent and/or or the Lenders (or any Lender of them) would otherwise have been entitled to recover from any one or more of the Borrowers.
(Cc) It is the intent of each Borrower that the indebtedness, obligations and liability liabilities hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant basis related to any applicable federal or state law dealing with fraudulent conveyance conveyances or fraudulent transfer lawsany other law related to transfers for less than fair or reasonably equivalent value. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7, 3.06 together with all of its other liabilities to all Persons as of the CHAPARRAL ENERGY, L.L.C. SEVENTH RESTATED CREDIT AGREEMENT date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount amounts sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("“Dated Liabilities"”) is, is and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("“Dated Assets"”). To this end, each Borrower under this Section 2.7, 3.06 (i) grants to and recognizes in each other Borrower, Borrower ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower orBorrower, as the case may be, and (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.73.06. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers each Borrower will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 3.06 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder.
(d) Each Borrower agrees and acknowledges that the present structure of the credit facilities detailed in this Agreement is based in part upon the financial and other information presently known to the Administrative Agent and the Lenders regarding each Borrower, the corporate or other organizational structure of each Borrower, and the present financial condition of each Borrower. In Upon or after the occurrence of an Event of Default and so long as it is continuing, each Borrower hereby agrees that the Majority Lenders shall have (in addition to and not any other right provided for in limitation the Loan Documents) the right, in their sole credit judgment, to require that any or all of the foregoing provisions following changes be made to these credit facilities: (i) restrict loans and advances between the Borrowers, and (ii) establish such other procedures (in consultation with the Borrowers) as shall be reasonably deemed by the Majority Lenders to be useful in tracking where Loans are made under this Agreement and the source of payments received by the Lenders on such Loans.
(e) Each Borrower waives any right to require the Administrative Agent or any Lender to proceed against any other Person, exhaust any collateral or security for the Indebtedness, or to have any other Borrower or Credit Party joined with such Borrower in any suit arising out of the Indebtedness, this Agreement or any other Loan Document, or pursue any other remedy in the Administrative Agent’s or any Lender’s power. Each Borrower further waives any and all notice of acceptance of this Section 2.7Agreement and of the creation, modification, rearrangement, renewal or extension for any period of any of the Borrowers Indebtedness from time to time. Each Borrower further waives any defense arising by reason of any disability or other defense, other than the defense of payment, of any other Borrower or Credit Party or by reason of the cessation from any cause whatsoever of the liability of any other Borrower or Credit Party. Until all of the Indebtedness shall have been paid in full, no Borrower shall have any right to subrogation and Lenders hereby agree and acknowledge that it is the intent of each Borrower waives the right to enforce any remedy which the Administrative Agent or any Lender has or may hereafter have against any other Borrower or Credit Party, and waives any benefit of Lenders that and any right to participate in any other security whatsoever now or hereafter held by the Administrative Agent. Each Borrower authorizes the Administrative Agent CHAPARRAL ENERGY, L.L.C. SEVENTH RESTATED CREDIT AGREEMENT and each Lender, without notice or demand and without any reservation of rights against such Borrower and without affecting such Borrower’s liability hereunder or on the Indebtedness, from time to time to (i) take or hold any other Property of any type from any other Person as security for the Indebtedness, and exchange, enforce, waive and release any or all of such other Property; (ii) renew, extend for any period, accelerate, modify, compromise, settle or release any of the obligations of each any other Borrower hereunder be or Credit Party in respect to any or all respects in compliance withof the Indebtedness or other security for the Indebtedness; (iii) waive, enforce, modify, amend or supplement any of the provisions of any Loan Document with any Person other than such Borrower; and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws(iv) release or substitute any other Borrower or Credit Party.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each US Borrower states and acknowledges that: (i) pursuant to this Agreement, the US Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it each US Borrower has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral the Administrative Agent and Lenders hereunder and a desire of the Borrowers each US Borrower that each US Borrower execute and deliver to Collateral Administrative Agent and Lenders this Agreement; and (iv) Borrowers have each US Borrower has requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each US Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral the Administrative Agent, the Canadian Administrative Agent and the Lenders for the full and prompt payment and performance of the Obligations and the performance by obligations of each Borrower of its obligations hereunder in accordance with the terms hereofunder this Agreement and each other Loan Document that may specify that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral the Administrative Agent, the Canadian Administrative Agent and/or any Lender and each Lender, on demand for and against any loss incurred by Collateral any such Agent and/or or any Lender as a result of any of the obligations of any one or more of Borrower (the Borrowers "SUBJECT BORROWER") being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender the Subject Borrower or any Person, the amount of such loss being the amount which Collateral the Administrative Agent, the Canadian Administrative Agent and/or or the Lenders (or any Lender of them) would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(Cc) Each Canadian Borrower states and acknowledges that: (i) pursuant to this Agreement, the Canadian Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity; (ii) each Canadian Borrower has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of the Administrative Agent and Lenders hereunder and a desire of each Canadian Borrower that each Canadian Borrower execute and deliver to Administrative Agent and Lenders this Agreement; and (iv) each Canadian Borrower has requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(d) Each Canadian Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to the Administrative Agent, the Canadian Administrative Agent and the Lenders for the full and prompt payment and performance of the obligations of each Canadian Borrower under this Agreement and each other Loan Document that may specify that a particular Canadian Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder to a Canadian Borrower as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify the Administrative Agent, the Canadian Administrative Agent and each Canadian Lender, on demand for and against any loss incurred by any such Agent or any Canadian Lender as a result of any of the obligations of any Canadian Borrower (the "SUBJECT CANADIAN BORROWER") being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to the Subject Canadian Borrower or any Person, the amount of such loss being the amount which the Administrative Agent, the Canadian Administrative Agent or the Canadian Lenders (or any of them) would otherwise have been entitled to recover from the Subject Canadian Borrower.
(e) It is the intent of each US Borrower that the indebtedness, obligations and liability liabilities hereunder and under the other Loan Documents of no one of them be subject to challenge on any basis, including, without limitation, pursuant basis related to any applicable federal or state law dealing with fraudulent conveyance conveyances or fraudulent transfer lawsany other law related to transfers for less than fair or reasonably equivalent value. Accordingly, as of the date hereof, the liability of each US Borrower under this Section 2.7, 2.23 together with all of its other liabilities to all Persons persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("Dated LiabilitiesDATED LIABILITIES") is, is and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated AssetsDATED ASSETS"). To this end, each US Borrower under this Section 2.7, 2.23
(i) grants to and recognizes in each other Borrower, US Borrower ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such US Borrower, but for the aggregate rights of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such US Borrower or, as the case may be, and (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other US Borrowers in the amount, if any, by which the Dated Liabilities of such US Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such US Borrower under this Section 2.72.23. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers each US Borrower will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 2.23 that each US Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to .
(f) Each Borrower agrees and not in limitation acknowledges that the present structure of the foregoing provisions of credit facilities detailed in this Section 2.7Agreement is based in part upon the financial and other information presently known to the Administrative Agent, the Borrowers Canadian Administrative Agent and the Lenders hereby agree regarding each Borrower, the corporate structure of the Borrowers, and acknowledge that it is the intent present financial condition of each Borrower. Each Borrower and of Lenders hereby agrees that the obligations Required Lenders shall have the right, in their sole credit judgment, to require that any or all of the following changes be made to these credit facilities: (i) further restrict loans and advances between the Borrowers, (ii) establish separate lockbox and Controlled Disbursement Accounts for each Borrower hereunder Borrower, (iii) separate the Swingline Loans and Revolving Loans into separate revolving credit loans to each of the Borrowers as shall be in all respects in compliance withdetermined by the Required Lenders, and not (iv) establish such other procedures as shall be voidable pursuant to, applicable fraudulent conveyance reasonably deemed by the Required Lenders to be useful in tracking where Loans are made under this Agreement and fraudulent transfer lawsthe source of payments received by the Lenders on such Loans.
Appears in 1 contract
Samples: Credit Agreement (Stewart & Stevenson Funding Corp.)
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances credit contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereofof the Loan Documents; (ii) agrees to fully and promptly perform all of its obligations hereunder under the Loan Documents with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Lenders on demand for and against any loss incurred by Collateral Agent and/or Lenders (other than a loss arising any Lender Lender's willful misconduct or gross negligence) as a result of any of the obligations of any one or more of Borrowers under the Borrowers Loan Documents being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Lenders or any other Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Lenders would otherwise have been entitled to recover from any one or more of Borrowers. Each Borrower hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the Borrowerspayment and performance of all of the Obligations. If and to the extent that any Borrower fails to make any payment with respect to the Obligations as and when due or to perform any of its obligations in accordance with the terms of the Loan Documents, then in each such event the other Borrowers will make such payment with respect to, or perform, such obligations.
(Cc) The joint and several liability of each Borrower for the Obligations shall be absolute and unconditional irrespective of and shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations. Without limiting the generality of the foregoing, the obligations of each Borrower shall not be discharged or impaired or otherwise affected by:
(i) any change in the manner, place or terms of payment or performance and/or any change or extension of the time of payment or performance of, renewal or alteration of, any Obligation, any security therefor, or any liability incurred directly or indirectly in respect thereof, or any rescission of, or amendment, waiver or other modification of, or any consent to departure from any Loan Document, including any increase in the Obligations resulting from the extension of additional credit to any Borrower;
(ii) any sale, exchange, release, surrender, realization upon any property at any time pledged or mortgaged to secure any of the Obligations, and/or any offset against, or failure to perfect, or continue the perfection of, any lien in any such property, or delay in the perfection of any such lien, or any amendment or waiver of or consent to departure from any other guaranty for any of the Obligations;
(iii) the failure of Lenders to assert any claim or demand or to enforce any right or remedy against any Borrower or other Person under the provisions of any Loan Document;
(iv) any settlement or compromise of any Obligation, any security therefor or any liability incurred directly or indirectly in respect thereof, and any subordination of the payment of any part thereof to the payment of any obligation (whether due or not) of any other Borrower to creditors of such other Borrower other than any other Borrower;
(v) any manner of application of any collateral for the Obligations or proceeds thereof, to any of the Obligations, or any manner of sale or other disposition of any such collateral for all or any of the Obligations or any other assets of any Borrower;
(vi) any change, restructuring or termination of the existence of any Borrower; or
(vii) any other agreement or circumstance of any nature whatsoever that might in any manner or to any extent vary the risk of any Borrower, or that might otherwise at law or in equity constitute a defense available to, or a discharge of, the obligations of any Borrower, or a defense to, or discharge of, any Borrower or other Person relating to any of the Obligations.
(d) The joint and several liability of Borrowers shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower.
(e) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7the Loan Documents, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in an amount sufficient to pay its probable net liabilities on its existing Indebtedness (including Contingent Obligations) as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, end each Borrower under this Section 2.7, hereby (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, be (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7Borrower. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (A) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of a credit facilities facility which would not otherwise be available to such any Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligations; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder Lendxxx xxxeunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(B) Each Borrower hereby irrevocably and unconditionally: :
(i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereof; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any and each Lender on demand for and against any loss incurred by Collateral Agent and/or or any Lender as a result of any of the obligations of any one or more of the Borrowers being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or or any Lender or any Person, the amount of such loss being the amount which Collateral Agent and/or any or such Lender would otherwise have been entitled to recover from any one or more of the Borrowers.
(C) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one neither of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7SECTION 1.4, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness as the same become absolute and matured ("Dated LiabilitiesDATED LIABILITIES") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated AssetsDATED ASSETS"). To this end, each Borrower under this Section 2.7SECTION 1.4, (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer lawsSECTION 1.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders Bank hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders Bank this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances credit contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders Bank for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereofof the Loan Documents; (ii) agrees to fully and promptly perform all of its obligations hereunder under the Loan Documents with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Bank on demand for and against any loss incurred by Collateral Agent and/or any Lender Bank as a result of any of the obligations of any one or more of Borrowers under the Borrowers Loan Documents being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Bank or any other Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Bank would otherwise have been entitled to recover from any one or more of Borrowers. Each Borrower hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the Borrowerspayment and performance of all of the Obligations. If and to the extent that any Borrower fails to make any payment with respect to the Obligations as and when due or to perform any of its obligations in accordance with the terms of the Loan Documents, then in each such event the other Borrowers will make such payment with respect to, or perform, such obligations.
(Cc) The joint and several liability of each Borrower for the Obligations shall be absolute and unconditional irrespective of and shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations. Without limiting the generality of P14 the foregoing, the obligations of each Borrower shall not be discharged or impaired or otherwise affected by:
(i) any change in the manner, place or terms of payment or performance and/or any change or extension of the time of payment or performance of, renewal or alteration of, any Obligation, any security therefor, or any liability incurred directly or indirectly in respect thereof, or any rescission of, or amendment, waiver or other modification of, or any consent to departure from any Loan Document, including any increase in the Obligations resulting from the extension of additional credit to any of Borrowers;
(ii) any sale, exchange, release, surrender, realization upon any property at any time pledged or mortgaged to secure any of the Obligations, and/or any offset against, or failure to perfect, or continue the perfection of, any lien in any such property, or delay in the perfection of any such lien, or any amendment or waiver of or consent to departure from any other guaranty for any of the Obligations;
(iii) the failure of Bank to assert any claim or demand or to enforce any right or remedy against any Borrower or any other Person under the provisions of any Loan Document;
(iv) any settlement or compromise of any Obligation, any security therefor or any liability incurred directly or indirectly in respect thereof, and any subordination of the payment of any part thereof to the payment of any obligation (whether due or not) of any other Borrower to creditors of such other Borrower other than any other Borrower;
(v) any manner of application of any collateral for the Obligations or proceeds thereof, to any of the Obligations, or any manner of sale or other disposition of any such collateral for all or any of the Obligations or any other assets of any Borrower;
(vi) any change, restructuring or termination of the existence of any Borrower; or
(vii) any other agreement or circumstance of any nature whatsoever that might in any manner or to any extent vary the risk of any Borrower, or that might otherwise at law or in equity constitute a defense available to, or a discharge of, the obligations of any Borrower, or a defense to, or discharge of, any Borrower or any other Person relating to any of the Obligations.
(d) The joint and several liability of Borrowers shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower.
(e) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7the Loan Documents, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in an amount sufficient to pay its probable net liabilities on its existing Indebtedness (including contingent liabilities) as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, end each Borrower under this Section 2.7, hereby (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, be (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7Borrower. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.P16
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each Borrower states and acknowledges that: (i) pursuant to this Agreement, Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral Agent and Lenders hereunder and a desire of the Borrowers that each Borrower execute and deliver to Collateral Agent and Lenders this Agreement; and (iv) Borrowers have requested and bargained for the structure and terms of and security for the advances credit contemplated by this Agreement.
(Bb) Each Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral Agent and Lenders for the full and prompt payment of the Obligations and the performance by each Borrower of its obligations hereunder in accordance with the terms hereofof the Loan Documents; (ii) agrees to fully and promptly perform all of its obligations hereunder under the Loan Documents with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral Agent and/or any Lender Lenders on demand for and against any loss incurred by Collateral Agent and/or Lenders (other than a loss arising any Lender Lender's willful misconduct or gross negligence) as a result of any of the obligations of any one or more of Borrowers under the Borrowers Loan Documents being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender Lenders or any other Person, the amount of such loss being the amount which Collateral Agent and/or any Lender Lenders would otherwise have been entitled to recover from any one or more of Borrowers. Each Borrower hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with each other Borrower with respect to the Borrowerspayment and performance of all of the Obligations. If and to the extent that any Borrower fails to make any payment with respect to the Obligations as and when due or to perform any of its obligations in accordance with the terms of the Loan Documents, then in each such event the other Borrowers will make such payment with respect to, or perform, such obligations.
(Cc) The joint and several liability of each Borrower for the Obligations shall be absolute and unconditional irrespective of and shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations. Without limiting the generality of the foregoing, the obligations of each Borrower shall not be discharged or impaired or otherwise affected by:
(i) any change in the manner, place or terms of payment or performance and/or any change or extension of the time of payment or performance of, renewal or alteration of, any Obligation, any security therefor, or any liability incurred directly or indirectly in respect thereof, or any rescission of, or amendment, waiver or other modification of, or any consent to departure from any Loan Document, including any increase in the Obligations resulting from the extension of additional credit to any Borrower;
(ii) any sale, exchange, release, surrender, realization upon any property at any time pledged or mortgaged to secure any of the Obligations, and/or any offset against, or failure to perfect, or continue the perfection of, any lien in any such property, or delay in the perfection of any such lien, or any amendment or waiver of or consent to departure from any other guaranty for any of the Obligations;
(iii) the failure of Lenders to assert any claim or demand or to enforce any right or remedy against any Borrower or other Person under the provisions of any Loan Document;
(iv) any settlement or compromise of any Obligation, any security therefor or any liability incurred directly or indirectly in respect thereof, and any subordination of the payment of any part thereof to the payment of any obligation (whether due or not) of any other Borrower to creditors of such other Borrower other than any other Borrower;
(v) any manner of application of any collateral for the Obligations or proceeds thereof, to any of the Obligations, or any manner of sale or other disposition of any such collateral for all or any of the Obligations or any other assets of any Borrower;
(vi) any change, restructuring or termination of the existence of any Borrower; or
(vii) any other agreement or circumstance of any nature whatsoever that might in any manner or to any extent vary the risk of any Borrower, or that might otherwise at law or in equity constitute a defense available to, or a discharge of, the obligations of any Borrower, or a defense to, or discharge of, any Borrower or other Person relating to any of the Obligations.
(d) The joint and several liability of Borrowers shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower.
(e) It is the intent of each Borrower that the indebtedness, obligations and liability hereunder of no one of them be subject to challenge on any basis, including, without limitation, pursuant to any applicable fraudulent conveyance or fraudulent transfer laws. Accordingly, as of the date hereof, the liability of each Borrower under this Section 2.7the Loan Documents, together with all of its other liabilities to all Persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in an amount sufficient to pay its probable net liabilities on its existing Indebtedness (including contingent liabilities) as the same become absolute and matured ("Dated Liabilities") is, and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("Dated Assets"). To this end, end each Borrower under this Section 2.7, hereby (i) grants to and recognizes in each other Borrower, ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such Borrower or, as the case may be, be (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other Borrowers in the amount, if any, by which the Dated Liabilities of such Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such Borrower under this Section 2.7Borrower. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 that each Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to and not in limitation of the foregoing provisions of this Section 2.7, the Borrowers and Lenders hereby agree and acknowledge that it is the intent of each Borrower and of Lenders that the obligations of each Borrower hereunder be in all respects in compliance with, and not be voidable pursuant to, applicable fraudulent conveyance and fraudulent transfer laws.
Appears in 1 contract
Joint and Several Liability; Rights of Contribution. (Aa) Each US Borrower states and acknowledges that: (i) pursuant to this Agreement, the US Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity and that this Agreement reflects the establishment of credit facilities which would not otherwise be available to such Borrower if each Borrower were not jointly and severally liable for payment of all of the Obligationsentity; (ii) it each US Borrower has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of Collateral the Administrative Agent and Lenders hereunder and a desire of the Borrowers each US Borrower that each US Borrower execute and deliver to Collateral Administrative Agent and Lenders this Agreement; and (iv) Borrowers have each US Borrower has requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(Bb) Each US Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to Collateral the Administrative Agent, the Canadian Administrative Agent and the Lenders for the full and prompt payment and performance of the Obligations and the performance by obligations of each Borrower of its obligations hereunder in accordance with the terms hereofunder this Agreement and each other Loan Document that may specify that a particular Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify Collateral the Administrative Agent, the Canadian Administrative Agent and/or any Lender and each Lender, on demand for and against any loss incurred by Collateral any such Agent and/or or any Lender as a result of any of the obligations of any one or more of Borrower (the Borrowers “Subject Borrower”) being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Collateral Agent and/or any Lender the Subject Borrower or any Person, the amount of such loss being the amount which Collateral the Administrative Agent, the Canadian Administrative Agent and/or or the Lenders (or any Lender of them) would otherwise have been entitled to recover from any one or more of the BorrowersBorrower.
(Cc) Each Canadian Borrower states and acknowledges that: (i) pursuant to this Agreement, the Canadian Borrowers desire to utilize their borrowing potential on a consolidated basis to the same extent possible if they were merged into a single corporate entity; (ii) each Canadian Borrower has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (iii) it is both a condition precedent to the obligations of the Administrative Agent and Lenders hereunder and a desire of each Canadian Borrower that each Canadian Borrower execute and deliver to Administrative Agent and Lenders this Agreement; and (iv) each Canadian Borrower has requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement.
(d) Each Canadian Borrower hereby irrevocably and unconditionally: (i) agrees that it is jointly and severally liable to the Administrative Agent, the Canadian Administrative Agent and the Lenders for the full and prompt payment and performance of the obligations of each Canadian Borrower under this Agreement and each other Loan Document that may specify that a particular Canadian Borrower is responsible for a given payment or performance; (ii) agrees to fully and promptly perform all of its obligations hereunder with respect to each advance of credit hereunder to a Canadian Borrower as if such advance had been made directly to it; and (iii) agrees as a primary obligation to indemnify the Administrative Agent, the Canadian Administrative Agent and each Canadian Lender, on demand for and against any loss incurred by any such Agent or any Canadian Lender as a result of any of the obligations of any Canadian Borrower (the “Subject Canadian Borrower”) being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to the Subject Canadian Borrower or any Person, the amount of such loss being the amount which the Administrative Agent, the Canadian Administrative Agent or the Canadian Lenders (or any of them) would otherwise have been entitled to recover from the Subject Canadian Borrower.
(e) It is the intent of each US Borrower that the indebtedness, obligations and liability liabilities hereunder and under the other Loan Documents of no one each of them not be subject to challenge on any basis, including, without limitation, pursuant basis related to any applicable federal or state law dealing with fraudulent conveyance conveyances or fraudulent transfer lawsany other law related to transfers for less than fair or reasonably equivalent value. Accordingly, as of the date hereof, the liability of each US Borrower under this Section 2.7, 2.23 together with all of its other liabilities to all Persons persons as of the date hereof and as of any other date on which a transfer or conveyance is deemed to occur by virtue of this Agreement, calculated in amount sufficient to pay its probable net liabilities on its existing Indebtedness indebtedness as the same become absolute and matured ("“Dated Liabilities"”) is, is and is to be, less than the amount of the aggregate of a fair valuation of its property as of such corresponding date ("“Dated Assets"”). To this end, each US Borrower under this Section 2.7, 2.23
(i) grants to and recognizes in each other Borrower, US Borrower ratably, rights of subrogation and contribution in the amount, if any, by which the Dated Assets of such US Borrower, but for the aggregate rights of subrogation and contribution in its favor recognized herein, would exceed the Dated Liabilities of such US Borrower or, as the case may be, and (ii) acknowledges receipt of and recognizes its right to subrogation and contribution ratably from each of the other US Borrowers in the amount, if any, by which the Dated Liabilities of such US Borrower, but for the aggregate of subrogation and contribution in its favor recognized herein, would exceed the Dated Assets of such US Borrower under this Section 2.72.23. In recognizing the value of the Dated Assets and the Dated Liabilities, it is understood that Borrowers each US Borrower will recognize, to at least the same extent of their aggregate recognition of liabilities hereunder, their rights to subrogation and contribution hereunder. It is a material objective of this Section 2.7 2.23 that each US Borrower recognizes rights to subrogation and contribution rather than be deemed to be insolvent (or in contemplation thereof) by reason of an arbitrary interpretation of its joint and several obligations hereunder. In addition to .
(f) Each Borrower agrees and not in limitation acknowledges that the present structure of the foregoing provisions of credit facilities detailed in this Section 2.7Agreement is based in part upon the financial and other information presently known to the Administrative Agent, the Borrowers Canadian Administrative Agent and the Lenders hereby agree regarding each Borrower, the corporate structure of the Borrowers, and acknowledge that it is the intent present financial condition of each Borrower. Each Borrower and of Lenders hereby agrees that the obligations Required Lenders shall have the right, in their sole credit judgment, to require that any or all of the following changes be made to these credit facilities: (i) further restrict loans and advances between the Borrowers, (ii) establish separate lockbox and Controlled Disbursement Accounts for each Borrower hereunder Borrower, (iii) separate the Swingline Loans and Revolving Loans into separate revolving credit loans to each of the Borrowers as shall be in all respects in compliance withdetermined by the Required Lenders, and not (iv) establish such other procedures as shall be voidable pursuant to, applicable fraudulent conveyance reasonably deemed by the Required Lenders to be useful in tracking where Loans are made under this Agreement and fraudulent transfer lawsthe source of payments received by the Lenders on such Loans.
Appears in 1 contract
