Joint and Several Obligations. 11.1.1 The handling of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment). 11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses. 11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the Obligations.
Appears in 7 contracts
Samples: Credit Agreement (Crocs, Inc.), Credit Agreement (Crocs, Inc.), Revolving Credit Facility (Crocs, Inc.)
Joint and Several Obligations. 11.1.1 The handling 14.1. All Obligations to Constitute Joint and Several Obligations.
(a) All Obligations shall constitute joint and several obligations of this credit facility as a co-borrowing facility the Borrowers and shall be secured by the Agent's Lien upon all of the Collateral, and by all other security interests and Liens heretofore, now or at any time hereafter granted by each Borrower to the Agent and the Lenders, to the extent provided in the manner set forth in this Agreement Loan Documents under which such Lien arises. Each Borrower expressly represents and acknowledges that it is solely as an accommodation to part of a common enterprise with the other Borrowers and at their request. Neither Administrative Agent nor that any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative financial accommodations by the Agent and the Lenders to do so any other Borrower hereunder and in consideration thereofunder the other Loan Documents are and will be of direct and indirect interest, each benefit and advantage to all Borrowers. Each Borrower hereby indemnifies acknowledges that any notice or request given by the Administrative Agent and each Lender and holds Borrower (including the Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Borrower) to the Agent or any Lender by shall bind all Borrowers, and that any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence notice given by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and severalAgent, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any BorrowerBorrower shall be effective with respect to all Borrowers. Each Borrower acknowledges and agrees that each Borrower shall be liable, failure on a joint and several basis, for all of Administrative the Loans and other Obligations, regardless of which Borrower actually may have received the proceeds of any of the Loans or other extensions of credit or the amount of such Loans received or the manner in which the Agent or any Lender of the Lenders accounts among the Borrowers for such Loans or other extensions of credit on its books and records, and further acknowledges and agrees that Loans to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender inure to the mutual benefit of all of the Borrowers and that the Agent and the Lenders are relying on the joint and several liability of the Borrowers in extending the Loans and other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereoffinancial accommodations hereunder. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any shall be entitled to subrogation and all contribution rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have from and against the other Borrowers to the extent any Borrower is required to pay to the Lenders any amount in excess of the Loans advanced directly to, or other Obligations incurred directly by, such Borrower or as otherwise available under Applicable Law; provided, however, that such subrogation and contribution rights are and shall be subject to the terms and conditions of this Section 14.1.
(b) It is the intent of the Borrowers, the Agent and the Lenders and any other Person directly or contingently liable for holding any of the Obligations hereunder, that each Borrower's maximum obligations hereunder (such Borrower's "Maximum Borrower Liability") in any case or proceeding referred to below (but only in such a case or proceeding) shall not be in excess of:
(i) in a case or proceeding commenced by or against such Borrower under the Bankruptcy Code on or with respect within one (1) year from the date on which any of the Obligations of such Borrower are incurred, the maximum amount that would not otherwise cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Agent, the Lenders and any other Borrowers’ property Person holding any of the Obligations) to be avoidable or unenforceable against such Borrower under (A) Section 548 of the Bankruptcy Code or (B) any state fraudulent transfer or fraudulent conveyance act or statute applied in such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such Borrower under the Bankruptcy Code subsequent to one (1) year from the date on which any of the Obligations of such Borrower are incurred, the maximum amount that would not otherwise cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Agent, the Lenders and any other Person holding any of the Obligations) to be avoidable or unenforceable against such Borrower under any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such Borrower under any law, statute or regulation other than the Bankruptcy Code relating to dissolution, liquidation, conservatorship, bankruptcy, moratorium, readjustment of debt, compromise, rearrangement, receivership, insolvency, reorganization or similar debtor relief from time to time in effect affecting the rights of creditors generally (collectively, "Other Debtor Relief Law"), the maximum amount that would not otherwise cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Agent and the Lenders and any other Person holding any of the Obligations) to be avoidable or unenforceable against such Borrower under such Other Debtor Relief Law, including, without limitation, any property state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding. (The substantive state or federal laws under which the possible avoidance or unenforceability of the Obligations of any Borrower hereunder (or any other Obligations of such Borrower to the Agent, the Lenders and any other Person holding any of the Obligations) shall be determined in any such case or proceeding shall hereinafter be referred to as the "Avoidance Provisions"). Notwithstanding the foregoing, no provision of this Section 14.1(b) shall limit any Borrower's liability for loans advanced directly or indirectly to it under this Agreement.
(c) To the extent set forth in Section 14.1(b) hereof, but only to the extent that the Obligations of any Borrower hereunder, or the transfers made by such Borrower under any Loan Document, would otherwise be subject to avoidance under any Avoidance Provisions if such Borrower is Collateral not deemed to have received valuable consideration, fair value, fair consideration or reasonably equivalent value for such transfers or obligations, or if such transfers or obligations of any Borrower hereunder would render such Borrower insolvent, or leave such Borrower with an unreasonably small capital or unreasonably small assets to conduct its business, or cause such Borrower to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of the obligations of such Borrower are deemed to have been incurred and transfers made under such Avoidance Provisions, then the obligations of such Borrower hereunder shall be reduced to that amount which, after giving effect thereto, would not cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Agent, the Lenders or any other Person holding any of the Obligations), arising as so reduced, to be subject to avoidance under such Avoidance Provisions. This Section 14.1(c) is intended solely to preserve the rights hereunder of the Agent, the Lenders and any other Person holding any of the Obligations to the maximum extent that would not cause the obligations of the Borrowers hereunder to be subject to avoidance under any Avoidance Provisions, and none of the Borrowers nor any other Person shall have any right, defense, offset, or claim under this Section 14.1(c) as against the Agent, the Lenders or any other Person holding any of the Obligations that would not otherwise be available to such Person under the Avoidance Provisions.
(d) Each Borrower agrees that the Obligations may at any time and from time to time exceed the existence Maximum Borrower Liability of such Borrower, and may exceed the aggregate Maximum Borrower Liability of all Borrowers hereunder, without impairing this Agreement or performance any provision contained herein or affecting the rights and remedies of the Lenders or the Agent hereunder.
(e) In the event any Borrower (a "Funding Borrower") shall make any payment or payments under this AgreementAgreement or shall suffer any loss as a result of any realization upon any collateral granted by it to secure its obligations hereunder, each other Borrower (each, a "Contributing Borrower") shall contribute to such Funding Borrower an amount equal to such payment or payments made, or losses suffered, by such Funding Borrower determined as of the date on which such payment or loss was made multiplied by the ratio of (i) the Maximum Borrower Liability of such Contributing Borrower (without giving effect to any right to receive any contribution or other obligation to make any contribution hereunder), to (ii) the aggregate Maximum Borrower Liability of all Borrowers (including the Funding Borrowers) hereunder (without giving effect to any right to receive, or obligation to make, any contribution hereunder). Nothing in this Section 14.1(e) shall affect any Borrower's joint and several liability to the Agent and the Lenders for the entire amount of its Obligations. Each Borrower covenants and agrees that its right to receive any contribution hereunder from a Contributing Borrower shall be subordinate and junior in right of payment to all obligations of the Borrowers to the Agent and the Lenders hereunder.
(f) No Borrower will exercise any rights that it may acquire by way of subrogation hereunder or under any other Loan Document 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 Borrower hereunder or under any other Loan Document, until termination of this Agreement all amounts owing to the Agent and Payment in Full the Lenders on account of the Obligations are paid in full in cash and the Commitments are terminated. If any amounts shall be paid to any Borrower on account of such subrogation or contribution rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Borrower in trust for the Agent and the Lenders, segregated from other funds of such Borrower, and shall, forthwith upon receipt by such Borrower, be turned over to the Agent in the exact form received by such Borrower (duly endorsed by such Borrower to the Agent, if required), to be applied against the Obligations, whether matured or unmatured, as provided for herein.
Appears in 4 contracts
Samples: Credit Agreement (Salton Inc), Support Agreement (Salton Inc), Support Agreement (Salton Inc)
Joint and Several Obligations. 11.1.1 The handling (a) All Obligations shall constitute joint and several obligations of this credit facility as a co-borrowing facility the Borrowers and shall be secured by the Administrative Agent’s security interest (on behalf of the Lender Group) and Lien upon all of the Collateral, and by all other security interests and Liens heretofore, now or at any time hereafter granted by each Borrower to the Lender Group, or any of them, to the extent provided in the manner set forth in this Agreement Security Documents under which such Lien arises. Each Borrower expressly represents and acknowledges that it is solely as an accommodation to part of a common enterprise with the other Borrowers and at their requestthat any financial accommodations by the Lender Group, or any of them, to any other Borrower hereunder and under the other Loan Documents are and will be of direct and indirect interest, benefit and advantage to all Borrowers. Neither Administrative Agent nor Each Borrower acknowledges that any Lender shall incur liability Notice of Borrowing, Notice of Conversion/Continuation or other notice given by any Borrower to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Administrative Agent or any Lender by shall bind all Borrowers, and that any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence notice given by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any BorrowerBorrower shall be effective with respect to all Borrowers. Each Borrower acknowledges and agrees that each Borrower shall be liable, failure on a joint and several basis, for all of the Loans and other Obligations, regardless of which Borrower actually may have received the proceeds of any of the Loans or other extensions of credit or the amount of such Loans or other extensions of credit received or the manner in which the Administrative Agent or any Lender accounts among the Borrowers for such Loans or other Obligations on its books and records, and further acknowledges and agrees that Loans and other extensions of credit to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender inure to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives mutual benefit of all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the ObligationsBorrowers and that the Lender Group is relying on the joint and several liability of the Borrowers in extending the Loans and other financial accommodations under the Loan Documents and Bank Products Documents.
Appears in 3 contracts
Samples: Credit Agreement (La-Z-Boy Inc), Credit Agreement (La-Z-Boy Inc), Credit Agreement (La-Z-Boy Inc)
Joint and Several Obligations. 11.1.1 The handling (a) All Obligations shall constitute joint and several obligations of this credit facility as a co-borrowing facility Borrowers and shall be secured by the Administrative Agent’s security interest (on behalf of the Lender Group) and Lien upon all of the Collateral, and by all other security interests and Liens heretofore, now or at any time hereafter granted by each Borrower to the Lender Group, or any of them, to the extent provided in the manner set forth in this Agreement Security Documents under which such Lien arises. Each Borrower expressly represents and acknowledges that it is solely as an accommodation to part of a common enterprise with the other Borrowers and at their requestthat any financial accommodations by the Lender Group, or any of them, to any other Borrower hereunder and under the other Loan Documents are and will be of direct and indirect interest, benefit and advantage to all Borrowers. Neither Administrative Agent nor Each Borrower acknowledges that any Lender shall incur liability Notice of Conversion/Continuation or other notice given by any Borrower to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against the Administrative Agent or any Lender by shall bind all Borrowers, and that any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence notice given by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any BorrowerBorrower shall be effective with respect to all Borrowers. Each Borrower acknowledges and agrees that each Borrower shall be liable, failure on a joint and several basis, for all of the Loans and other Obligations, regardless of which Borrower actually may have received the proceeds of any of the Loans or other extensions of credit or the amount of such Loans or other extensions of credit received or the manner in which the Administrative Agent or any Lender accounts among Borrowers for such Loans or other Obligations on its books and records, and further acknowledges and agrees that Loans and other extensions of credit to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender inure to the mutual benefit of all of Borrowers and that the Lender Group is relying on the joint and several liability of Borrowers in extending the Loans and other Borrowers or any Collateral for such Borrower’s Obligations or financial accommodations under the lack thereof. Loan Documents and Bank Products Documents.
(b) Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any shall be entitled to subrogation and all contribution rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have from and against the other Borrowers to the extent any Borrower is required to pay to the Lender Group any amount in excess of the Loans advanced directly to, or other Obligations incurred directly by, such Borrower or as otherwise available under Applicable Law; provided, however, that such subrogation and contribution rights are and shall be subject to the terms and conditions of Sections 2.13(c) through 2.13(g).
(c) It is the intent of Borrowers and the Lender Group and any other Person holding any of the Obligations that each Borrower’s maximum obligations hereunder (such Borrower’s “Maximum Borrower Liability”) in any case or proceeding referred to below (but only in such a case or proceeding) shall not be in excess of:
(i) in a case or proceeding commenced by or against such Borrower under the Bankruptcy Code on or within one (1) year from the date on which any of the Obligations of such Borrower are incurred, the maximum amount that would not otherwise cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Lender Group and any other Person holding any of the Obligations) to be avoidable or unenforceable against such Borrower under (A) Section 548 of the Bankruptcy Code or (B) any state fraudulent transfer or fraudulent conveyance act or statute applied in such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such Borrower under the Bankruptcy Code subsequent to one (1) year from the date on which any of the Obligations of such Borrower are incurred, the maximum amount that would not otherwise cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Lender Group and any other Person holding any of the Obligations) to be avoidable or unenforceable against such Borrower under any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such Borrower under any law, statute or regulation other than the Bankruptcy Code relating to dissolution, liquidation, conservatorship, bankruptcy, moratorium, readjustment of debt, compromise, rearrangement, receivership, insolvency, reorganization or similar debtor relief from time to time in effect affecting the rights of creditors generally (collectively, “Other Debtor Relief Law”), the maximum amount that would not otherwise cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Lender Group and any other Person holding any of the Obligations) to be avoidable or unenforceable against such Borrower under such Other Debtor Relief Law, including any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding. (The substantive state or federal laws under which the possible avoidance or unenforceability of the Obligations of any Borrower hereunder (or any other Obligations of such Borrower to the Lender Group and any other Person holding any of the Obligations) shall be determined in any such case or proceeding shall hereinafter be referred to as the “Avoidance Provisions”). Notwithstanding the foregoing, no provision of this Section 2.13(c) shall limit any Borrower’s liability for loans advanced directly or contingently liable for indirectly to it under this Agreement.
(d) To the extent set forth in Section 2.13(c), but only to the extent that the Obligations of any Borrower hereunder, or against the transfers made by such Borrower under any Security Document, would otherwise be subject to avoidance under any Avoidance Provisions if such Borrower is not deemed to have received valuable consideration, fair value, fair consideration or reasonably equivalent value for such transfers or obligations, or if such transfers or obligations of any Borrower hereunder would render such Borrower insolvent, or leave such Borrower with respect an unreasonably small capital or unreasonably small assets to conduct its business, or cause such Borrower to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of the obligations of such Borrower are deemed to have been incurred and transfers made under such Avoidance Provisions, then the obligations of such Borrower hereunder shall be reduced to that amount which, after giving effect thereto, would not cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Lender Group or any other Borrowers’ property (including, without limitation, Person holding any property which is Collateral for of the Obligations), arising as so reduced, to be subject to avoidance under such Avoidance Provisions. This Section 2.13(d) is intended solely to preserve the rights hereunder of the Lender Group and any other Person holding any of the Obligations to the maximum extent that would not cause the obligations of Borrowers hereunder to be subject to avoidance under any Avoidance Provisions, and none of Borrowers nor any other Person shall have any right, defense, offset, or claim under this Section 2.13(d) as against the Lender Group or any other Person holding any of the Obligations that would not otherwise be available to such Person under the Avoidance Provisions.
(e) Each Borrower agrees that the Obligations may at any time and from time to time exceed the existence Maximum Borrower Liability of such Borrower, and may exceed the aggregate Maximum Borrower Liability of all Borrowers hereunder, without impairing this Agreement or performance any provision contained herein or affecting the rights and remedies of the Lender Group hereunder.
(f) In the event any Borrower (a “Funding Borrower”) shall make any payment or payments under this AgreementAgreement or shall suffer any loss as a result of any realization upon any collateral granted by it to secure its obligations hereunder, each other Borrower (each, a “Contributing Borrower”) shall contribute to such Funding Borrower an amount equal to such payment or payments made, or losses suffered, by such Funding Borrower determined as of the date on which such payment or loss was made multiplied by the ratio of (i) the Maximum Borrower Liability of such Contributing Borrower (without giving effect to any right to receive any contribution or other obligation to make any contribution hereunder), to (ii) the aggregate Maximum Borrower Liability of all Borrowers (including the Funding Borrowers) hereunder (without giving effect to any right to receive, or obligation to make, any contribution hereunder). Nothing in this Section 2.13(f) shall affect any Borrower’s joint and several liability to the Lender Group for the entire amount of its Obligations. Each Borrower covenants and agrees that its right to receive any contribution hereunder from a Contributing Borrower shall be subordinate and junior in right of payment to all obligations of Borrowers to the Lender Group hereunder.
(g) No Borrower will exercise any rights which it may acquire by way of subrogation hereunder or under any other Loan Document or Bank Products Documents 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 Borrower hereunder or under any other Loan Document or Bank Products Documents, until termination of this Agreement and Payment in Full all amounts owing to the Lender Group on account of the Obligations are paid in full in cash. If any amounts shall be paid to any Borrower on account of such subrogation or contribution rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Borrower in trust for the Lender Group, segregated from other funds of such Borrower, and shall, forthwith upon receipt by such Borrower, be turned over to the Administrative Agent in the exact form received by such Borrower (duly endorsed by such Borrower to the Administrative Agent, if required), to be applied against the Obligations, whether matured or unmatured, as provided for herein.
Appears in 2 contracts
Samples: Credit Agreement (Affinity Guest Services, LLC), Credit Agreement (Affinity Group Holding, Inc.)
Joint and Several Obligations. 11.1.1 The handling obligations of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers Tower Automotive Operations USA I, LLC and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereofTower Automotive Holdings USA, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be LLC are joint and several. Each reference to the term "Lessee" shall be deemed to refer to each of Tower Automotive Operations USA I, LLC and Tower Automotive Holdings USA, LLC; each Borrower representation and warranty made by Lessee shall make payment upon the maturity of the Obligations be deemed to have been made by acceleration or otherwise, each such party; each covenant and such obligation and liability undertaking on the part of Lessee shall be deemed individually applicable with respect to each Borrower such party; and each event constituting an Event of Default under this Lease shall be determined with respect to each such party. A separate action or actions may be brought and prosecuted against any such party whether an action is brought against any other party or whether any other party is joined in no way any such action or actions. Each such party waives any right to require Lessor to: (a) proceed against any other party; (b) proceed against or exhaust any security held from any other party; or (c) pursue any other remedy in Lessor's power whatsoever. Notices hereunder required to be affected provided to Lessee shall be effective if provided to any such party. Any consent on the part of Lessee hereunder shall be effective when provided by any extensionssuch party and Lessor shall be entitled to rely upon any notice or consent given by any such party as being notice or consent given by Lessee hereunder. In the event any obligation of Lessee under this Lease is deemed to be an agreement by any individual Lessee to answer for the debt or default of another individual Lessee (including each other) or as a hypothecation of property as security therefor, renewals each Lessee represents and forbearance granted by Administrative Agent warrants that: (x) no representation has been made to it as to the creditworthiness of any other obligor, and (y) it has established adequate means of obtaining from each other obligor on a continuing basis, financial or any Lender other information pertaining to any Borrowereach other obligor's financial condition. Each Lessee expressly waives diligence, failure of Administrative Agent or any Lender to give any Borrower demand, presentment, protest and notice of borrowing every kind and nature whatsoever, consents to the taking by Lessor of any additional security for the obligations secured hereby, or the alteration or release in any manner of any security now or hereafter held in connection with any obligations now or hereafter secured by this Lease, and consents that Lessor and any obligor may deal with each other in connection with said obligations or otherwise, or alter any contracts now or hereafter existing between them, in any manner whatsoever, including without limitation the renewal, extension, acceleration, changes in time for payment, and increases or decreases in any rent, rate of interest or other amounts owing, all without in any way altering the liability of each Lessee, or affecting any security for such obligations. Should any default be made in the payment of any such obligations or in the terms or conditions of any security held, Lessor is hereby expressly given the right, at its option, to proceed in the enforcement of this Lease independently of any other notice, remedy or security it may at any failure of Administrative Agent time hold in connection with such obligations secured and it shall not be necessary for Lessor to proceed upon or against and/or exhaust any Lender other security or remedy before proceeding to pursue or preserve enforce its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereofLessee. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly Lessee further waives any and all rights right of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers contribution, indemnification, setoff or other Person directly or contingently liable for the Obligations hereunder, or against or with recourse in respect of sums paid to the other Borrowers’ property (including, without limitation, Lessor by any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the ObligationsLessee.
Appears in 2 contracts
Samples: Master Lease Agreement, Master Lease Agreement (Tower International, Inc.)
Joint and Several Obligations. 11.1.1 The handling If more than one Person is a Borrower hereunder, the following shall apply:
(a) All Obligations, covenants and liabilities of this credit facility as a co-borrowing facility in Borrower hereunder shall be the manner set forth in this Agreement is solely as an accommodation to Borrowers joint and at their requestseveral Obligations, covenants and liabilities of each Borrower. Neither Administrative Agent nor any Lender All representations and warranties of Borrower hereunder shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, be deemed made by each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each such Borrower. The Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each the Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, the failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, Borrower or the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 (b) Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of or any other claim which such Borrower may now or hereafter have against the any other Borrowers Borrower or against any other Person directly or contingently liable for the Obligations until all Obligations have been indefeasibly paid in full as determined by Lender.
(c) Each Borrower represents and warrants to Lender that (i) the Borrowers have one or more common or affiliated shareholders, directors and officers, (ii) the businesses and corporate activities of each Borrower are closely related to, and substantially benefit, the business and corporate activities of the other, (iii) each Borrower will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of the Loan hereunder, in each case, whether or against or with respect to not such amount is used directly by such Borrower and (iv) the other Borrowers’ property (including, without limitation, any property which is Collateral Loans made hereunder are for the Obligations)exclusive and indivisible benefit of the Borrower as though, arising from the existence or performance for purposes of this Agreement, until termination of this Agreement and Payment in Full of the ObligationsBorrowers constituted a single entity.]
Appears in 2 contracts
Samples: Loan and Security Agreement (Greenwood Hall, Inc.), Loan and Security Agreement (Greenwood Hall, Inc.)
Joint and Several Obligations. 11.1.1 (1) All obligations hereunder which are stated to be obligations of any Borrower to the Lenders shall, to the extent permitted by Applicable Law, be joint and several obligations of the Borrowers. The handling obligation of this any Borrower with respect to its joint and several liability for the credit facility extended to any other Borrower shall not be wholly or partially satisfied by such first mentioned Borrower repaying the credit extended to such first mentioned Borrower hereunder. The Lenders shall not be bound to exhaust their recourse against any of the Borrowers or any security or guarantees they may at any time hold before being entitled to payment from any other Borrower and each Borrower renounces all benefits of discussion and division.
(2) In addition to all such rights of indemnity and subrogation as a co-borrowing facility the Borrowers may have under Applicable Law, in the manner set forth event a payment shall be made by a Borrower (the “Claiming Borrower”) in this Agreement is solely as an accommodation respect of credit extended to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers the other Borrower (the “Borrowing Borrower”) as a result thereof. To induce Administrative Agent of the Claiming Borrower’s joint and Lenders several liability hereunder, the Borrowing Borrower shall indemnify the Claiming Borrower for the full amount of such payment and, subject to do so and in consideration thereofclause (c) below, each the Claiming Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against shall be subrogated to the rights of the person to whom such payment shall have been made to the extent of such payment.
(3) None of the Borrowers shall exercise any and all liabilitiesrights which it may acquire by way of indemnity, expenses, losses, damages and claims of damage subrogation or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred contribution by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be its joint and severalseveral liability hereunder, and each Borrower shall make by any payment upon the maturity of the Obligations by acceleration made hereunder or otherwise, and such obligation and liability until the prior repayment in full of all outstanding credit hereunder. Any amount paid to a Borrower on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender account of any Collateral now or thereafter acquired from any Borrowersuch rights prior to the repayment in full of all outstanding credit hereunder shall be held in trust for the benefit of the Lenders and shall immediately be paid to the Agent for the account of the Lenders, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional credited and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have applied against the other Borrowers or other Person directly or contingently liable for the Obligations outstanding credit hereunder, whether matured or against or unmatured, in accordance with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the Obligationsterms hereof.
Appears in 2 contracts
Samples: Credit Agreement (Tucows Inc /Pa/), Credit Agreement (Tucows Inc /Pa/)
Joint and Several Obligations. 11.1.1 The handling If more than one Person is a Borrower hereunder, the following shall apply:
(a) All Obligations, covenants and liabilities of this credit facility as a co-borrowing facility in Borrower hereunder shall be the manner set forth in this Agreement is solely as an accommodation to Borrowers joint and at their requestseveral Obligations, covenants and liabilities of each Borrower. Neither Administrative Agent nor any Lender All representations and warranties of Borrower hereunder shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, be deemed made by each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each such Borrower. The Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each the Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, the failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, Borrower or the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 (b) Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of or any other claim which such Borrower may now or hereafter have against the any other Borrowers Borrower or against any other Person directly or contingently liable for the Obligations until all Obligations have been indefeasibly paid in full as determined by Lender.
(c) Each Borrower represents and warrants to Lender that (i) the Borrowers have one or more common or affiliated shareholders, directors and officers, (ii) the businesses and corporate activities of each Borrower are closely related to, and substantially benefit, the business and corporate activities of the other, (iii) each Borrower will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of the Loan hereunder, in each case, whether or against or with respect to not such amount is used directly by such Borrower and (iv) the other Borrowers’ property (including, without limitation, any property which is Collateral Loans made hereunder are for the Obligations)exclusive and indivisible benefit of the Borrower as though, arising from the existence or performance for purposes of this Agreement, until termination of this Agreement and Payment in Full of the ObligationsBorrowers constituted a single entity.
Appears in 2 contracts
Samples: Loan and Security Agreement (Mint Leasing Inc), Loan and Security Agreement (XZERES Corp.)
Joint and Several Obligations. 11.1.1 (a) Each Borrower agrees that its obligations and liabilities (including the Indebtedness) under this Agreement and all other Transaction Documents are joint and several obligations regardless of which Borrower receives the proceeds of the Transactions or the manner in which the Borrowers, the Agent or the Lenders account therefor in their respective records. Each Borrower acknowledges and agrees that, for purposes of the Transaction Documents, the Borrowers constitute a single integrated financial enterprise and that each receives a benefit from the availability of credit under this Agreement to each other Borrower.
(b) Each Borrower acknowledges that it will enjoy significant benefits from the business conducted by the other Borrowers because of, inter alia, their combined ability to bargain with other Persons including without limitation, their ability to receive the credit extensions under this Agreement and the other Transaction Documents, which would not have been available to an individual Borrower acting alone. Each Borrower has determined that it is in its best interest to procure the credit facilities contemplated hereunder, with the credit support of the other Borrowers as contemplated by this Agreement and the other Transaction Documents.
(c) The handling Agent and the Lenders have advised the Borrowers that they are unwilling to enter into this Agreement and the other Transaction Documents and make available the credit facilities extended hereby or thereby to a Borrower unless the other Borrowers agree, among other things, to be jointly and severally liable for the due and proper payment of the Indebtedness of the other Borrowers under this Agreement and the other Transaction Documents. Each Borrower has determined that it is in its best interest and in pursuit of its purposes that it so induce the Agent and the Lenders to extend credit pursuant to this Agreement and the other Transaction Documents (i) because of the desirability to each Borrower of the credit facilities hereunder and the interest rates and the modes of borrowing available hereunder; (ii) because a Borrower may engage in transactions jointly with other Borrowers; and (iii) because a Borrower may require, from time to time, access to funds under this Agreement for the purposes herein set forth. Each Borrower, individually, expressly understands, agrees and acknowledges, that the credit facilities contemplated hereunder would not be made available on the terms herein in the absence of the collective credit of the Borrowers and the joint and several liability of all such Persons. Accordingly, each Borrower individually acknowledges that the benefit of the accommodations made under this Agreement to the Borrowers as a whole constitutes reasonably equivalent value, regardless of the amount of the indebtedness actually borrowed by, advanced to, or the amount of credit provided to, any individual Borrower.
(d) Notwithstanding anything herein, in the Notes or in any other Transaction Document to the contrary, in any action or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if, as a result of applicable law relating to fraudulent conveyance or fraudulent transfer, including Section 548 of the Bankruptcy Code or any applicable provisions of comparable state law (collectively, "Fraudulent Transfer Laws"), the obligations of a Borrower under this Agreement, the Notes or any other Transaction Document would, after giving effect to (i) all other liabilities of such Borrower, contingent or otherwise, that are relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Borrower in respect of intercompany Consolidated Debt to another Borrower); and (ii) the value as assets of such Borrower (as determined under the applicable provisions of such Fraudulent Transfer Laws) and of any rights of subrogation, contribution, reimbursement, indemnity or similar rights held by such Borrower, be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under this Agreement, the Notes or any other Transaction Document, then the amount of such liability shall, without any further action by such Borrower, any Lender, the Agent or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(e) Subject to the terms of this credit facility Agreement and the other Transaction Documents, the Agent is hereby authorized, without notice or demand and without affecting the liability of any Borrower hereunder, to, at any time and from time to time, (i) renew, extend or otherwise increase the time for payment of the Indebtedness; (ii) with the written agreement of Borrowers, accelerate or otherwise change the terms relating to the Indebtedness or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument now or hereafter executed by any Borrower and delivered to Agent; (iii) accept partial payments of the Indebtedness; (iv) take and hold security or collateral for the payment of the Indebtedness or for the payment of any guaranties of the Indebtedness and exchange, enforce, waive and release any such security or collateral; (v) apply such security or collateral and direct the order or manner of sale thereof as a co-borrowing facility Agent, in its sole discretion, may determine; (vi) settle, release, compromise, collect or otherwise liquidate the manner set forth Indebtedness and any security or collateral therefor in any manner; and (vii) exercise, in its sole discretion, any right, remedy or combination thereof that may then be available to Agent, without affecting or impairing the Indebtedness of any Borrower. Except as specifically provided in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling other Transaction Documents, Agent shall have the exclusive right to determine the time and manner of the financing arrangements application of Borrowers as provided hereinany payments or credits, reliance by Administrative Agent or any Lender on any request or instruction whether received from any Borrower or any other action taken by Administrative source, and such determination shall be binding on all Borrowers. All such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of the Indebtedness as Agent shall determine in its sole discretion without affecting the validity or enforceability of the Indebtedness of any Lender other Borrower.
(f) Each Borrower hereby agrees that, except as hereinafter provided, its liability with respect to this Section 11.1 except due the Indebtedness hereunder shall be unconditional, irrespective of (i) the absence of any attempt to willful misconduct collect the Indebtedness from any obligor or gross other action to enforce the same; (not mereii) negligence the waiver or consent by Agent with respect to any provision of any instrument evidencing the indemnified party (as determined Indebtedness, or any part thereof, or any other agreement heretofore, now or hereafter executed by a court Borrower (other than a Borrower with respect to which such waiver or consent is granted) and delivered to Agent; (iii) the failure by Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Indebtedness; (iv) the institution of competent jurisdiction any proceeding under the United States Bankruptcy Code, or any similar proceeding, by or against a Borrower or Agent's election in any such proceeding of the application of Section 1111(b)(2) of the United States Bankruptcy Code; (v) any borrowing or grant of a final and nonsecurity interest by a Borrower as debtor-appealable judgment)in-possession, under Section 364 of the United States Bankruptcy Code; (vi) the disallowance, under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, of all or any portion of Agent's claim(s) for repayment of any of the Indebtedness; or (vii) any other circumstance other than payment in full of the Indebtedness which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety.
11.1.2 All Obligations (g) Each Borrower hereby waives (i) any right of redemption with respect to the Collateral after the sale hereunder, and all rights, if any, of marshalling of the Collateral or other collateral or security for the Indebtedness; and (ii) any right (except as shall be joint required by applicable statute and several, and each Borrower shall make payment upon cannot be waived) to require the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to (A) proceed against any Borrower, failure of Administrative Agent or any Lender to give any other Borrower notice of borrowing or any other noticePerson, (B) proceed against or exhaust any failure other collateral or security for any of Administrative Agent the Indebtedness, or (C) pursue any remedy in the Agent's or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereofLender's power whatsoever. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly hereby waives any and all rights defense based on or arising out of subrogation, reimbursement, indemnity, exoneration, contribution any defense of any other claim which such Borrower may now or hereafter have against the other Borrowers or any other Person directly or contingently liable for other than payment in full of the Obligations hereunderIndebtedness, or against or with respect to the other Borrowers’ property (including, without limitation, any property which defense based on or arising out of the disability of any other Borrower or any other Person, or the unenforceability of the Indebtedness or any part thereof for any reason, or the cessation for any reason of the liability of any other Borrower other than payment in full of the Indebtedness. The Agent may, at its election, foreclose on any security held by the Agent by one or more judicial or non-judicial sales, whether or not every aspect of any such sale is Collateral commercially reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Agent may have against any other Borrower or any other Person, or any security, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent the Indebtedness has been paid in full. Each Borrower waives all rights and defenses arising out of an election of remedies by the Agent, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower's rights of subrogation and reimbursement against any other Borrower.
(h) Until all Indebtedness has been paid and satisfied in full and all Revolving Credit Commitments and Term Loan Commitments hereunder are terminated, no payment made by or for the Obligations)account of a Borrower including, arising without limitation, (i) a payment made by such Borrower on behalf of the liabilities of any other Borrower; or (ii) a payment by any other person under any guaranty, shall entitle such Borrower, by subrogation or otherwise, to any payment from the existence any other Borrower or from or out of any other Borrower's property and such Borrower shall not exercise any right or remedy against any other Borrower or any property of any other Borrower by reason of any performance of such Borrower of its joint and several liability hereunder.
(i) Any notice given by one Borrower hereunder shall constitute and be deemed to be notice given by all Borrowers, jointly and severally. Notice given by Agent or Lenders to AMC hereunder or pursuant to any other Transaction Documents in accordance with the terms hereof shall constitute notice to each and every Borrower. The knowledge of one Borrower shall be imputed to all Borrowers and any consent by one Borrower shall constitute the consent of and shall bind all Borrowers.
(j) This Section 13.24 is intended to define the relative rights of Borrowers and nothing set forth in this Agreementsection is intended to or shall impair the Indebtedness of Borrowers, until termination jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement or any other Transaction Documents. Nothing contained in this section shall limit the liability of any Borrower to pay the credit facilities made directly or indirectly to that Borrower and Payment in Full accrued interest, fees and expenses with respect thereto or for which such Borrower shall be primarily liable.
(k) The parties hereto acknowledge that any rights of contribution and indemnification of a Borrower against another Borrower shall constitute assets of each Borrower to which such contribution and indemnification is owing. The rights of any indemnifying Borrower against the other Borrowers shall be exercisable upon the full and indefeasible payment of the ObligationsIndebtedness and the termination of the credit facilities hereunder.
(l) This Agreement is a primary and original obligation of each of the Borrowers and each of the Borrowers shall be liable for all existing and future Indebtedness of any other Borrower as fully as if such Indebtedness were directly incurred by such Borrower.
(m) Each Borrower further agrees that its Indebtedness hereunder shall not be impaired in any manner whatsoever by any bankruptcy, extensions, moratoria or other relief granted to any other Borrower pursuant to any statute presently in force or hereafter enacted.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Air Methods Corp), Revolving Credit and Term Loan Agreement (Air Methods Corp)
Joint and Several Obligations. 11.1.1 The handling (a) Each of this credit facility as the Borrowers acknowledges and agrees that (i) it is a co-borrowing facility in borrower hereunder and shall be jointly and severally, with the other Borrowers, directly and primarily liable for the Finance Obligations regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans or other extensions of credit received or the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither which the Administrative Agent nor and/or any Lender or L/C Issuer accounts for such Loans or other extensions of credit on its books and records, (ii) each of the Borrowers shall incur liability have the obligations of co-maker and shall be primary obligors with respect to Borrowers as a result thereof. To induce Administrative Agent all Loans, the Letters of Credit and Lenders the other Finance Obligations, it being agreed that such extensions of credit to do so and in consideration thereof, each Borrower hereby indemnifies inure to the benefit of all Borrowers, and (iii) the Administrative Agent and each Lender of the Lenders and holds Administrative Agent L/C Issuers is relying on such joint and several liability of the Borrowers as co-makers in extending the Loans and issuing the Letters of Credit hereunder. Each Borrower’s obligations with respect to Loans made to it or with respect to any Letters of Credit issued for its account, and each Lender harmless Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder, with respect to Loans made to the other Borrower hereunder or with respect to any Letters of Credit issued for the account of any other Borrower hereunder, shall be separate and distinct obligations, but all such Finance Obligations shall be primary obligations of each Borrower. Each Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, by acceleration or otherwise) of any principal of, or interest on, any Finance Obligation payable by it to the Lender, it will forthwith pay the same, without notice of demand.
(b) Each Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to the Finance Obligations of the other Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or enforceability, avoidance or subordination of the Finance Obligations of the other Borrowers or other document evidencing all or any part of the Finance Obligations of the other Borrowers, (ii) the absence of any attempt to collect the Finance Obligations from and against any and all liabilitiesother Borrower, expensesor any other security therefor, lossesor the absence of any other action to enforce the same, damages and claims (iii) the waiver, consent, extension, forbearance or granting of damage or injury asserted against Administrative any indulgence by any Agent or any Lender or L/C Issuer with respect to any provision of any instrument evidencing the Finance Obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative other Borrower and delivered to any Agent or any Lender on or L/C Issuer, (iv) the failure by any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender or L/C Issuer to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security for the Finance Obligations of any other Borrower, (v) any borrowing or grant of a security interest by any other Borrower, as debtors-in-possession under Section 364 of the Bankruptcy Code, (vi) the disallowance of all or any portion of any Agent’s or any Lender’s or L/C Issuer’s claim(s) for the repayment of the Finance Obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (vii) any other circumstances which might constitute a legal or equitable discharge or defense of any other Borrower.
(c) With respect to each Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to this Section 11.1 except due the Finance Obligations of any of the other Borrowers hereunder, each Borrower waives, until the Revolving Termination Date, any right to willful misconduct enforce any right of subrogation or gross (not mere) negligence by any remedy which any Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and severalFinance Obligations, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwiseany benefit of, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensionsright to participate in, renewals and forbearance granted by Administrative any security or collateral given to any Agent or any Lender to secure payment of the Finance Obligations.
(d) No payment or payments made by any Borrower, failure of Administrative the Borrowers or any other Person or received or collected by any Agent or any Lender to give or L/C Issuer from any Borrower notice of borrowing the Borrowers or any other notice, Person by virtue of any failure of Administrative Agent action or proceeding or any Lender set-off or appropriation or application at any time or from time to pursue time in reduction of or preserve its rights against any Borrowerin payment of the Finance Obligations shall be deemed (except to the extent Finance Obligations are satisfied) to modify, release or otherwise affect the release by Administrative Agent or any Lender liability of any Collateral now or thereafter acquired from any BorrowerBorrower under this Agreement, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently shall remain liable for the Finance Obligations hereunder, or against or with respect to until the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the ObligationsRevolving Termination Date.
Appears in 2 contracts
Samples: Abl Credit Agreement (MKS Instruments Inc), Abl Credit Agreement (MKS Instruments Inc)
Joint and Several Obligations. 11.1.1 The handling (a) All Obligations shall constitute joint and several obligations of this credit facility as Borrowers (including any Additional Borrowers). Each Borrower expressly represents and acknowledges that it is part of a co-borrowing facility in common enterprise with the manner set forth in this Agreement is solely as an accommodation to other Borrowers and at their request. Neither that any financial accommodations by Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent Agent, the Lenders, Issuing Lender, and Lenders to do so and in consideration thereofSwingline Lender, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by of them, to any Person arising from or incurred by reason other Borrowers hereunder and under the other Loan Documents are and will be of the handling direct and indirect interest, benefit and advantage to all Borrowers. Each Borrower acknowledges that any notice of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower Borrowing or any other action taken notice given by any other Borrower to Administrative Agent, the Lenders, Issuing Lender or Swingline Lender shall bind all Borrowers, and that any notice given by Administrative Agent Agent, the Lenders, Issuing Lender or Swingline Lender to any Lender Borrower shall be effective with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final all Borrowers. Each Borrower acknowledges and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and agrees that each Borrower shall make payment upon the maturity be liable, on a joint and several basis, for all of the Loans and other Obligations, regardless of which such Person actually may have received the proceeds of any of the Loans or other extensions of credit or the amount of such Loans or other extensions of credit received or the manner in which Administrative Agent, the Lenders, Issuing Lender or Swingline Lender accounts among Borrowers for such Loans or other Obligations by acceleration or otherwiseon its books and records, and such obligation further acknowledges and liability agrees that Loans and other extensions of credit to any Borrower inure to the mutual benefit of all of Borrowers and that Administrative Agent, the Lenders, Issuing Lender, and Swingline Lender are relying on the part joint and several liability of each Borrowers in extending the Loans and other financial accommodations under the Loan Documents and Bank Product Agreements; provided, that notwithstanding anything to the contrary in this Section, no Borrower shall in no way be affected liable for any Swap Obligation incurred by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any an Obligor other than such Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for extent such Borrower’s Swap Obligation would constitute Excluded Swap Obligations or the lack thereof. with respect to such Borrower at such time.
(b) Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any shall be entitled to subrogation and all contribution rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have from and against the other Borrowers to the extent such Person is required to pay to Administrative Agent, the Lenders, Issuing Lender or Swingline Lender any amount in excess of the Loans advanced directly to, or other Obligations incurred directly by, such Person directly or contingently liable for as otherwise available under applicable law; provided, however, that such subrogation and contribution rights are and shall be subject to the terms and conditions of Sections 10.15(c) and 10.15(d).
(c) It is the intent of each Borrower, Administrative Agent, the Lenders, Issuing Lender, Swingline Lender and any other Person holding any of the Obligations hereunder, that the maximum obligations of each Borrower hereunder (such Person’s “Maximum Borrower Liability”) in any case or against proceeding referred to below (but only in such a case or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment proceeding) shall not be in Full of the Obligations.excess of:
Appears in 2 contracts
Samples: Credit Agreement (Kellogg Co), Credit Agreement (WK Kellogg Co)
Joint and Several Obligations. 11.1.1 The handling of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent to the Lender or any Lender the Issuer to any Borrower, failure of Administrative Agent the Lender or any Lender the Issuer to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent the Lender or any Lender the Issuer to pursue or preserve its rights against any Borrower, the release by Administrative Agent the Lender or any Lender the Issuer of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent the Lender or any Lender the Issuer to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives . Without limiting the generality of the foregoing, each of the Borrowers hereby acknowledges and agrees that any and all rights actions, inactions or omissions by any one or more, or all, of subrogationthe Borrowers in connection with, reimbursementrelated to or otherwise affecting this Agreement or any of the other Loan Documents are the obligations of, indemnityand inure to and are binding upon, exonerationeach and all of the Borrowers, contribution jointly and severally. Each covenant, agreement, obligation, representation and warranty of the Borrowers contained herein constitutes the joint and several undertaking of each Borrower. Each Borrower acknowledges that the obligations of such Borrower undertaken herein might be construed to consist, at least in part, of the guaranty of obligations of the other Borrower and, in full recognition of that fact, each Borrower consents and agrees that the Lender may, at any time and from time to time, without notice or demand, whether before or after any actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness hereof as to such Borrower: (a) supplement, restate, modify, amend, increase, decrease, extend, renew or otherwise change the time for payment or the terms of this Agreement or any part thereof, including any increase or decrease of the rate(s) of interest thereon; (b) supplement, restate, modify, amend, increase, decrease or waive, or enter into or give any agreement, approval or consent with respect to, this Agreement or any part thereof, or any of the Loan Documents, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (c) accept partial payments; (d) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the order or manner of sale thereof as the Lender, in its sole and absolute discretion may determine; (e) release any Person from any personal liability with respect to this Agreement or any part thereof; (f) settle, release on terms satisfactory to the Lender or by operation of applicable law or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (g) consent to the merger, change or any other claim restructuring or termination of the corporate or partnership existence of any Borrower, or any other Person, and correspondingly restructure the obligations evidenced hereby, and any such merger, change, restructuring or termination shall not affect the liability of any Borrower or the continuing effectiveness hereof, or the enforceability hereof with respect to all or any part of the obligations evidenced hereby. Each Borrower states and acknowledges that: (w) pursuant to this Agreement, the 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 may now if each Borrower were not jointly and severally liable for payment of the obligations; (x) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (y) it is both a condition precedent to the obligations of the Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to the Lender this Agreement; and (z) the Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement. Each Borrower agrees if such Borrower’s joint and several liability hereunder, or hereafter if any Liens securing such joint and several liability, would, but for the application of this Section 14.2, be unenforceable under applicable law, such joint and several liability and each such Lien shall be valid and enforceable to the maximum extent that would not cause such joint and several liability or such Lien to be unenforceable under applicable law, and such joint and several liability and such Lien shall be deemed to have against been automatically amended accordingly at all relevant times. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans or Advances made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and, be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s “Allocable Amount” (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (A) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or other Person directly Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (B) leaving such Borrower with unreasonably small capital or contingently liable for assets, within the Obligations hereundermeaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, Section 4 of the UFTA, or against (C) leaving such Borrower unable to pay its debts as they become due within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or with respect Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification and reimbursement under this Section shall be subordinate in right of payment to the other Borrowers’ property (including, without limitation, any property which is Collateral for prior payment in full of the Secured Obligations), arising from the existence or performance . The provisions of this AgreementSection shall, until termination of this Agreement and Payment to the extent expressly inconsistent with any provision in Full of the Obligationsany Loan Document, supersede such inconsistent provision.
Appears in 1 contract
Samples: Credit and Security Agreement (Sifco Industries Inc)
Joint and Several Obligations. 11.1.1 The handling If more than one Person is a Borrower hereunder, the following shall apply to each such Borrower:
(a) All Obligations, covenants and liabilities of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by under the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations Loan Documents shall be the joint and severalseveral Obligations, covenants and liabilities of each Borrower. All representations and warranties of any Borrower hereunder shall be deemed made by each Borrower. Each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each any Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, the failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, other Borrower or the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any other Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 (b) Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of or any other claim which such Borrower may now or hereafter have against the any other Borrowers Borrower or against any Guarantor or other Person directly or contingently liable for the Obligations hereunderuntil all Obligations have been indefeasibly paid in full as determined by Lender.
(c) Lender is hereby authorized, without notice or against demand and without affecting the liability of any Borrower, at any time and from time to time, to (i) renew, extend or otherwise increase the time for payment of the Obligations; (ii) with the written agreement of any Borrower, change the terms relating to the Obligations or otherwise modify, amend or change the terms of any Note or other agreement, document or instrument now or hereafter executed by any Borrower; (iii) accept partial payments of the Obligations; (iv) take and hold any Collateral for the payment of the Obligations or for the payment of any guaranties of the Obligations and exchange, enforce, waive and release any such Collateral; (v) apply any such Collateral and direct the order or manner of sale thereof as Lender, in its sole discretion, may determine; and (vi) settle, release, compromise, collect or otherwise liquidate the Obligations and any Collateral therefor in any manner, all guarantor and surety defenses being hereby waived by each Borrower. Except as specifically provided in the Loan Agreement, Lender shall have the exclusive right to determine the time and manner of application of any payments or credits, whether received from any Borrower or any other source, and such determination shall be binding on all Borrowers. All such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of the Obligations that Lender shall determine, in its sole discretion, without affecting the validity or enforceability of the Obligations of any Borrower.
(d) Each Borrower hereby agrees that its obligations hereunder shall be unconditional, irrespective of (i) the absence of any attempt to collect the Obligations from any obligor or other action to enforce the same; (ii) the waiver or consent by Lender with respect to any provision of any instrument evidencing the Obligations, or any part thereof, or any other Borrowers’ property agreement heretofore, now or hereafter executed by a Borrower and delivered to Lender; (iii) failure by Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations; (iv) the institution of any proceeding under the Bankruptcy Code, or any similar proceeding, by or against a Borrower or Xxxxxx’s election in any such proceeding of the application of Section 1111(b)(2) of the Bankruptcy Code (or any similar law); (v) any borrowing or grant of a security interest by a Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code; (vi) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of Xxxxxx’s claim(s) for repayment of any of the Obligations; or (vii) any other circumstance other than payment in full of the Obligations which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety, including, without limitation, any property which failure by Lender to bring suit against any Person that might otherwise result in a discharge of such Borrower’s obligations and liabilities under the Loan Documents pursuant to Chapter 43 of the Texas Civil Practice & Remedies Code or any other similar applicable law.
(e) Each Borrower represents and warrants to Lender that (i) each Borrower has one or more common or affiliated shareholders, directors and officers, (ii) the businesses and corporate activities of each Borrower are closely related to, and substantially benefit, the business and corporate activities of the other, and (iii) each Borrower will receive a substantial economic benefit from entering into the transactions evidenced by the Loan Documents and will receive a substantial economic benefit from the Loans, whether or not such amount is Collateral used directly by such Borrower, and (iv) the Loans made pursuant to the Loan Documents are for the exclusive and indivisible benefit of the Borrowers.
(f) Notwithstanding any provisions of this Loan Agreement Schedule to the contrary, it is intended that the joint and several nature of the liability of the Borrowers for the Obligations and the Liens granted by the Borrowers to secure the Obligations, not constitute a Fraudulent Conveyance (as defined below). Consequently, Lender and each Borrower agree that if the liability of any individual Borrower for the Obligations), arising from or any Liens granted by such Borrower securing the existence or performance Obligations would, but for the application of this Agreementsentence, until termination constitute a Fraudulent Conveyance, the liability of such Borrower and the Liens securing such liability shall be valid and enforceable only to the maximum extent that would not cause such liability or such Lien to constitute a Fraudulent Conveyance, and the liability of such Borrower and this Loan Agreement and Payment in Full Schedule shall automatically be deemed to have been amended accordingly. For purposes hereof, the term “Fraudulent Conveyance” means a fraudulent conveyance under Section 548 of the ObligationsBankruptcy Code or a fraudulent conveyance or fraudulent transfer under the applicable provisions of any fraudulent conveyance or fraudulent transfer law or similar law of any state, nation or other governmental unit, as in effect from time to time.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not merea) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall will be joint and several, and each Borrower shall will make payment upon the maturity of the Obligations by acceleration or otherwise, and such the obligation and liability on the part of each Borrower shall will in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such the agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse (or lack thereof) by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Obligations.
(b) Each Borrower waives all suretyship defenses.
11.1.3 Each . Without limiting the generality of the foregoing, each Borrower expressly waives hereby acknowledges and agrees that any and all rights actions, inactions or omissions by any one or more, or all, of subrogationBorrowers in connection with, reimbursementrelated to or otherwise affecting this Agreement or any of the other Loan Documents and inure to and are binding upon, indemnityeach and all of Borrowers, exonerationjointly and severally.
(c) Each covenant, contribution agreement, obligation, representation and warranty of Borrowers contained in any other claim which such Loan Document constitutes the joint and several undertaking of each Borrower. Each Borrower acknowledges that the obligations of Borrower undertaken in the Loan Documents may now or hereafter have against be construed to consist, at least in part, of the guarantee of obligations of the other Borrowers and, in full recognition of that fact, each Borrower consents and agrees that Lender may, at any time and from time to time without notice or demand, whether before or after any actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness of this Agreement as to any Borrower (but subject to the written consent of Borrowers with respect to subsections (i) and (ii), to the extent Lender does not have the unilateral right to make the changes under the terms of the Loan Documents as the result of the occurrence of an Event of Default or otherwise):
(i) supplement, restate, modify, amend, increase, decrease, extend, renew or otherwise change the time for payment or the terms of this Agreement or any part thereof, including any increase or decrease of the rate(s) of interest thereon;
(ii) supplement, restate, modify, amend, increase, decrease or waive, or enter into or give any agreement, approval or consent with respect to, this Agreement or any part thereof, or any of the Loan Documents, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;
(iii) accept partial payments;
(iv) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the order or manner of sale thereof as Lender, in its sole and absolute discretion may determine;
(v) release any person or entity from any personal liability with respect to this Agreement or any part thereof;
(vi) settle, release on terms satisfactory to Lender or by operation of applicable law or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or
(vii) consent to the merger, change or any other Person directly restructuring or contingently termination of the corporate or partnership existence of any Borrower, or any other person or entity, and correspondingly restructure the obligations evidenced hereby, and any merger, change, restructuring or termination will not affect the liability of any Borrower or the continuing effectiveness hereof, or the enforceability hereof with respect to all or any part of the obligations evidenced hereby.
(d) Each Borrower 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 Borrower if Borrower were not jointly and severally liable for payment of the Obligations 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 Lender hereunder and a desire of Borrowers that each Borrower execute and deliver to 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. Each Borrower agrees if Borrower’s joint and several liability hereunder, or against if any liens or with respect security interest securing the joint and several liability, would, but for the application of this Section 3.9(d), be unenforceable under applicable law, the joint and several liability and each lien and security interest will be valid and enforceable to the maximum extent that would not cause the joint and several liability or the lien or security interest to be unenforceable under applicable law, and the joint and several liability and the liens and security interest will be deemed to have been automatically amended accordingly at all relevant times. To the extent that any Borrower, under this Agreement as a joint and several obligor, repays any of the Obligations that benefited another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making the Accommodation Payment will be entitled to contribution and indemnification from, and, be reimbursed by, each of the other Borrowers in an amount, for each of the other Borrowers’ property , equal to a fraction of the Accommodation Payment, the numerator of which fraction is the other Borrower’s Allocable Amount (including, without limitation, any property as defined below) and the denominator of which is Collateral the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower will be equal to the maximum amount of liability for Accommodation Payments which could be asserted against the ObligationsBorrower hereunder without (A) rendering the Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), arising from (B) leaving the existence Borrower with unreasonably small capital or performance assets, within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, Section 4 of the UFTA, or (C) leaving the Borrower unable to pay its debts as they become due within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification and reimbursement under this Agreement, until termination Section will be subordinate in right of this Agreement and Payment payment to the prior payment in Full full of the Obligations. The provisions of this Section will, to the extent expressly inconsistent with any provision in any Loan Document, supersede the inconsistent provisions.
Appears in 1 contract
Samples: Loan and Security Agreement (Hightimes Holding Corp.)
Joint and Several Obligations. 11.1.1 The handling (a) Each of this credit facility as the Borrowers acknowledges and agrees that (i) it is a co-borrowing facility in borrower hereunder and shall be jointly and severally, with the other Borrowers, directly and primarily liable for the Obligations regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans or other extensions of credit received or the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither which the Administrative Agent nor and/or any Lender accounts for such Loans or other extensions of credit on its books and records, (ii) each of the Borrowers shall incur liability have the obligations of co-maker and shall be primary obligors with respect to Borrowers as a result thereof. To induce Administrative Agent all Loans, the Notes, the Letters of Credit and Lenders the other Obligations, it being agreed that such extensions of credit to do so and in consideration thereof, each Borrower hereby indemnifies inure to the benefit of all Borrowers, and (iii) the Administrative Agent and each Lender of the Lenders is relying on such joint and holds Administrative Agent several liability of the Borrowers as co-makers in extending the Loans and issuing the Letters of Credit hereunder. Each Borrower’s obligations with respect to Loans made to it or with respect to any Letters of Credit issued for its account, and each Lender harmless from Borrower’s obligations arising as a result of the joint and against several liability of the Borrowers hereunder, with respect to Loans made to the other Borrower hereunder or with respect to any Letters of Credit issued for the account of any other Borrower hereunder, shall be separate and distinct obligations, but all liabilitiessuch Obligations shall be primary obligations of each Borrower. Each Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, expensesby acceleration or otherwise) of any principal of, lossesor interest on, damages any Obligation payable by it to the Lender, it will forthwith pay the same, without notice of demand.
(b) Each Borrower’s obligations arising as a result of the joint and claims several liability of damage the Borrowers hereunder with respect to Obligations of the other Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or injury asserted against Administrative Agent enforceability, avoidance or subordination of the Obligations of the other Borrowers or of any Note or other document evidencing all or any Lender by any Person arising from or incurred by reason part of the handling Obligations of the financing arrangements other Borrowers, (ii) the absence of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction attempt to collect the Obligations from any Borrower other Borrower, or any other security therefor, or the absence of any other action taken to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender with respect to this Section 11.1 except due any provision of any instrument evidencing the Obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to willful misconduct the Administrative Agent or gross any Lender, (not mereiv) negligence the failure by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security for the Obligations of any other Borrower, failure (v) any borrowing or grant of a security interest by any other Borrower, as debtors-in-possession under Section 364 of the Bankruptcy Code of the United States, (vi) the disallowance of all or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment of the Obligations of any other Borrower under Section 502 of the Bankruptcy Code of the United States, or (vii) any other circumstances which might constitute a legal or equitable discharge or defense of any other Borrower.
(c) With respect to each Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Obligations any of the other Borrowers hereunder, each Borrower waives, until the Obligations shall have been paid in full in cash and this Agreement and the other Loan Documents shall have terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to give secure payment of the Obligations.
(d) No payment or payments made by any Borrower notice of borrowing the Borrowers or any other notice, any failure of Person or received or collected by the Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to of the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution other Person by virtue of any other claim action or proceeding or any set-off-or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed (except to the extent Obligations are satisfied) to modify, release or otherwise affect the liability of any Borrower under this Agreement, which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently shall remain liable for the Obligations hereunder, or against or with respect to until the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of Obligations are paid in full in cash and this Agreement and Payment in Full of the Obligationsis terminated.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not merea) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be constitute joint and severalseveral obligations of the Borrowers and shall be secured by the Agent’s security interest and Lien upon all of the Collateral, and each Borrower shall make payment upon the maturity of the Obligations by acceleration all other security interests and Liens heretofore, now or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by at any extensions, renewals and forbearance time hereafter granted by Administrative the Borrowers to the Agent to the extent provided in the Loan Documents under which such Lien arises. Each Borrower expressly represents and acknowledges that any financial accommodations by the Agent or any Lender to any other Borrower hereunder and under the other Loan Documents are and will be of direct and indirect interest, benefit and advantage to such Borrower. Each Borrower acknowledges that any notice given by any other Borrower to the Agent or any Lender shall bind each Borrower, failure of Administrative and that any notice given by the Agent or any Lender to give any Borrower notice shall be effective with respect to each Borrower. Each Borrower acknowledges and agrees that each Borrower shall be liable, on a joint and several basis, for the Term Loans and all other Obligations, regardless of borrowing which Borrower actually may have received the proceeds of the Term Loans or any other notice, any failure extensions of Administrative credit or the amount of the Term Loans or other extensions of credit received or the manner in which the Agent or any Lender to pursue accounts among the Borrowers for the Term Loans or preserve other Obligations on its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrowerbooks and records, and such agreement by each further acknowledges and agrees that the Term Loans and other extensions of credit to any Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender inure to the mutual benefit of all of the Borrowers and that each of the Agent and Lenders is relying on the joint and several liability of the Borrowers in extending the Term Loans and other Borrowers or any Collateral for such Borrower’s Obligations or financial accommodations under the lack thereof. Loan Documents.
(b) Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any shall be entitled to subrogation and all contribution rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have from and against the other Borrowers to the extent any Borrower is required to pay to the Agent or Lenders any amount in excess of the Term Loans directly to, or other Person Obligations incurred directly by, such Borrower or contingently liable for as otherwise available under applicable law; provided, however, that such subrogation and contribution rights are and shall be subject to the terms and conditions of Sections 3.4(c), 3.4(d), 3.4(f) and 3.4(g).
(c) Each Borrower, and by its acceptance of this Agreement, each of the Agent and the Lenders hereby confirms that it is the intention of all such Persons that this Agreement and the Obligations hereunderof each Borrower hereunder not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act (the “UFCA”), the Uniform Fraudulent Transfer Act (the “UFTA”) or any other federal, state or foreign (including Canada) bankruptcy, insolvency, receivership or similar law to the extent applicable to this Agreement and the Obligations of each Borrower hereunder (collectively, the “Avoidance Provisions”). To effectuate the foregoing intention, each of the Agent and the Lenders, by its acceptance of this Agreement, and Borrower hereby irrevocably agree that the Obligations of each Borrower under this Agreement at any time shall be limited to the maximum amount as will result in the Obligations of such Borrower under this Agreement not constituting a fraudulent transfer or conveyance (such Borrower’s “Maximum Borrower Liability”). This Section 3.4(c) is intended solely to preserve the rights hereunder of the Agent, each Lender and any other Person holding any of the Obligations to the maximum extent that would not cause the obligations of the Borrowers hereunder to be subject to avoidance under any Avoidance Provisions, and none of the Borrowers nor any other Person shall have any right, defense, offset, or claim under this Section 3.4(c) as against the Agent, any Lender or any other Person holding any of the Obligations that would not otherwise be available to such Person under the Avoidance Provisions.
(d) To the extent that any Borrower shall, under this Agreement, make a payment of a portion of the Obligations (each, an “Obligor’s Payment”), then, without limiting its rights of subrogation against any other Borrower, such Borrower shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower and the Guarantors (collectively, the “Contributing Parties”) in an amount, for each such Contributing Party, equal to a fraction of such Obligor’s Payment, the numerator of which fraction is such Contributing Party’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Contributing Parties. As of any date of determination, the “Allocable Amount” of each Contributing Party shall be equal to the maximum amount of liability which could be asserted against such Contributing Party hereunder with respect to the other Borrowers’ property applicable Obligor’s Payment without (includingi) rendering such Contributing Party “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code or Section 2 of either the UFTA or the UFCA, (ii) leaving such Contributing Party with unreasonably small capital, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA, or (iii) leaving such Contributing Party unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA. Each Borrower’s right of contribution shall be subject to the terms and conditions of Sections 3.4(f) and 3.4(g). The provisions of this Section 3.4 shall in no respect limit the obligations and liabilities of any Borrower to any Secured Creditor, and each Borrower shall remain liable to each Secured Creditor for the full amount guaranteed by such Borrower hereunder. Notwithstanding the foregoing, no provision of this Section 3.4(d) shall limit any Borrower’s liability for any portion of the Term Loans advanced directly or indirectly to it under this Agreement.
(e) Each Borrower agrees that the Obligations may at any time and from time to time exceed the Maximum Borrower Liability of such Borrower and may exceed the aggregate Maximum Borrower Liability of all Borrowers hereunder, without limitationimpairing this Agreement or any provision contained herein or affecting the rights and remedies of any Secured Creditor hereunder.
(f) No Borrower will exercise any rights which it may acquire by way of subrogation hereunder or under any other Loan Document or at law by any payment made hereunder or otherwise, nor shall any property which is Collateral Borrower seek or be entitled to seek any contribution or reimbursement from any other Borrower in respect of payments made by such Borrower hereunder or under any other Loan Document, until all amounts owing to Secured Creditors on account of the Obligations are paid in full in cash (other than inchoate obligations for indemnification or unasserted claims for reimbursement). If any amounts shall be paid to any Borrower on account of such subrogation or contribution rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Borrower in trust for Secured Creditors, segregated from other funds of such Borrower, and shall, forthwith upon receipt by such Borrower, be turned over to the Agent, for the Obligationsbenefit of Secured Creditors, in the exact form received by such Borrower (duly endorsed by such Borrower to the Agent, if required), arising to be applied against the Obligations, whether matured or unmatured, as provided for herein.
(g) Nothing in this Section 3.4 shall affect any Borrower’s joint and several liability to Secured Creditors for the entire amount of its Obligations. Each Borrower covenants and agrees that its right to receive any contribution hereunder from the existence or performance a Borrower shall be subordinate and junior in right of this Agreement, until termination of this Agreement and Payment in Full payment to all obligations of the ObligationsBorrowers to Secured Creditors under the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (TerrAscend Corp.)
Joint and Several Obligations. 11.1.1 The handling (a) All of this credit facility as a co-borrowing facility in Lessee’s obligations under the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of Lease Documents are the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and severalseveral obligations under the Lease Documents of each Lessee, and each Borrower shall Lessee must make payment upon the maturity of all obligations under the Obligations Lease Documents by acceleration or otherwise, and such this obligation and liability on the part of each Borrower shall in no way be Lessee is not affected by any extensions, renewals renewals, and forbearance granted by Administrative Agent or any Lender Lessor to any BorrowerLessee, Lessor’s failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other Lessee notice, any Lessor’s failure of Administrative Agent or any Lender to pursue or preserve its rights against any BorrowerLessee, the release by Administrative Agent or any Lender Lessor of any Collateral now or thereafter hereafter acquired from any BorrowerLessee, and such any agreement by each Borrower Lessee to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender Lessor to the other Borrowers Lessee or any Collateral for such BorrowerLessee’s Obligations obligations or the lack thereof. Each Borrower Lessee waives all suretyship defenses.
11.1.3 Each Borrower expressly waives . Without limiting the generality of the foregoing, each Lessee acknowledges and agrees that any and all rights actions, inactions, or omissions by any one or more, or all, of subrogationthe Lessee in connection with, reimbursementrelated to, indemnityor otherwise affecting this Lease or any of the other Lease Documents are the obligations of, exonerationand inure to and are binding upon, contribution each and all of the Lessee, jointly and severally.
(b) Each covenant, agreement, obligation, representation and warranty of the Lessee contained in this Lease is the joint and several undertaking of Lessee. Each Lessee acknowledges that its obligations undertaken herein might be construed to consist, at least in part, of the guarantee of Lessee’s obligations under the Lease Documents of the other Lessee and, in full recognition of that fact, Lessee consents and agrees that Lessor may, at any time and from time-to-time without notice or demand, whether before or after any actual or purported termination, repudiation, or revocation of this Lease by any Lessee, and without affecting the enforceability or continuing effectiveness of this Lease as to any Lessee but subject to the Lessees’ written consent with respect to clauses (i) and (ii) of this subsection to the extent Lessor does not have the unilateral right to make such changes under the terms of the Lease Documents as the result of the occurrence of an Event of Default or otherwise: (i) supplement, restate, modify, amend, increase, decrease, extend, renew, or otherwise change the time for payment or the terms of this Lease or any part thereof, including any increase or decrease of the rate(s) of interest thereon; (ii) supplement, restate, modify, amend, increase, decrease or waive, or enter into or give any agreement, approval or consent with respect to, this Lease or any part thereof, or any of the Lease Documents, or any condition, covenant, default, remedy, right, representation, or term thereof or thereunder; (iii) accept partial payments; (iv) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the order or manner of sale thereof as Lessor, in its discretion determines; (v) release any person or entity from any personal liability with respect to this Lease or any part thereof; (vi) settle, release on terms satisfactory to Lessor or by operation of applicable law or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (vii) consent to the merger, change or any other claim which such Borrower may now restructuring or hereafter have against termination of the corporate or partnership existence of any Lessee, or any other Borrowers person, and correspondingly restructure Lessee’s obligations under the Lease Documents, and any merger, change, restructuring or other Person directly termination does not affect the liability of any Lessee or contingently the continuing effectiveness of this Lease, or the enforceability of this Lease with respect to all or any part of Lessee’s obligations under the Lease Documents.
(c) Each Lessee represents that: (i) under this Lease, the Lessee desire to utilize their potential to receive financial accommodations on a consolidated basis to the same extent possible as if they were merged into a single corporate entity and that this Lease reflects the establishment of lease arrangements that would not otherwise be available to the Lessee if Lessee were not jointly and severally liable for payment of Lessee’s obligations under the Obligations Lease Documents; (ii) it has determined that it will benefit specifically and materially from the leasing terms contemplated by this Lease; (iii) it is both a condition precedent to Lessor’s obligations hereunder and a desire of the Lessee that Lessee execute and deliver to Lessor this Lease; and (iv) the Lessee have requested and bargained for the structure and security for the terms contemplated by this Lease. Lessee agrees if its joint and several liability hereunder, or against or with respect if any security interests securing the joint and several liability, would, but for the application of this Section, be unenforceable under applicable law, then the joint and several liability and each security interests is valid and enforceable to the maximum extent that would not cause the joint and several liability or security interests to be unenforceable under applicable law, and the joint and several liability and the security interest is treated as having been automatically amended accordingly at all relevant times.
(d) To the extent that any Lessee, under this Lease as a joint and several obligor or a Guarantor under this Section, repays any of Lessee’s obligations under the Lease Documents constituting obligations owing by another Lessee or other Borrowers’ property obligations under the Lease Documents incurred directly and primarily by any other Lessee (includingan “Accommodation Payment”), without limitationthen the Lessee making an Accommodation Payment is entitled to contribution and indemnification from, any property and, be reimbursed by, each of the other Lessee in an amount, for each of the other Lessee, equal to a fraction of the Accommodation Payment, the numerator of which fraction is the other Lessee’s “Allocable Amount” (as defined below) and the denominator of which is Collateral the sum of the Allocable Amounts of all of the Lessee. As of any date of determination, the “Allocable Amount” of each Lessee is equal to the maximum amount of liability for Accommodation Payments that could be asserted against that Lessee hereunder without (i) rendering that Lessee “insolvent” within the Obligationsmeaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), arising from (ii) leaving that Lessee with unreasonably small capital or assets, within the existence meaning of Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, Section 4 of the UFTA, or performance (iii) leaving that Lessee unable to pay its debts as they become due within the meaning of Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification, and reimbursement under this Section are subordinate in right of payment to the prior payment in full of Lessee’s obligations under the Lease Documents. The provisions of this AgreementSection, until termination of this Agreement and Payment to the extent expressly inconsistent with any provision in Full of any Lease Document, supersede the Obligationsinconsistent provision.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling (a) Each Borrower (including without limitation the Company) shall bear liability under the Notes and Letter of Credit Outstandings for all amounts as aforesaid jointly and severally with each other Borrower and whether or not such Borrower is designated in any Request for Advance as the Borrower requesting any Loans, it having been determined by each Borrower that it will benefit from the availability of credit to all Borrowers under the terms and conditions of this credit facility Agreement. Notwithstanding the foregoing, no Foreign Subsidiary Borrower shall be liable for the obligations of any other Borrower hereunder, and each Foreign Subsidiary Borrower shall be liable solely for the Loans where it is designated as a co-borrowing facility in Borrower, for Letters of Credit issued to it, and for its pro rata share of all fees and expenses and other sums due hereunder (other than principal and interest on the manner set forth in Loans) based upon the ratio of Loans and Letters of Credit outstanding to such Borrower to the total amount of Loans outstanding and Letter of Credit Outstandings hereunder.
(b) The liability of each Borrower under this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against Note for any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason obligations of the handling Borrowers, individually and collectively, owed to the Banks under this Agreement and each Note shall be unconditional and absolute irrespective of (a) any lack of enforceability of any obligation, (b) any change of the financing arrangements time, manner, place of Borrowers as provided hereinpayment, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent term of any obligation, (c) any law, regulation or order of any Lender jurisdiction affecting the genuineness, validity, or rights of the Banks, individually and collectively, with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such any obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender instrument evidencing any obligation, or (d) any other circumstance which might otherwise constitute a defense to or discharge of any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, the release of any property which other Borrower from such obligations. Each Borrower agrees that its obligations hereunder are irrevocable; that a separate action or actions may be brought and prosecuted against it or other remedies hereunder may be sought regardless of whether any other Borrower is Collateral joined in any such action or actions or subject to enforcement of any such remedies; and that it waives the benefit of any statute of limitations affecting its liabilities hereunder and each Note or the enforcement hereof or thereof if the action otherwise barred by such statute of limitations is brought against any other Borrower within such statute of limitations. Each Borrower hereby irrevocably waives any right of subrogation or contribution it may have against any other Borrower for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the Obligationsamounts paid hereunder.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling 14.1. All Obligations to Constitute Joint and Several Obligations.
(a) All Obligations shall constitute joint and several obligations of this credit facility as a co-borrowing facility the Borrowers and shall be secured by the Agent’s Lien upon all of the Collateral, and by all other security interests and Liens heretofore, now or at any time hereafter granted by each Borrower to the Agent and the Lenders, to the extent provided in the manner set forth in this Agreement Loan Documents under which such Lien arises. Each Borrower expressly represents and acknowledges that it is solely as an accommodation to part of a common enterprise with the other Borrowers and at their request. Neither Administrative Agent nor that any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative financial accommodations by the Agent and the Lenders to do so any other Borrower hereunder and in consideration thereofunder the other Loan Documents are and will be of direct and indirect interest, each benefit and advantage to all Borrowers. Each Borrower hereby indemnifies acknowledges that any notice or request given by the Administrative Agent and each Lender and holds Borrower (including the Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Borrower) to the Agent or any Lender by shall bind all Borrowers, and that any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence notice given by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and severalAgent, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any BorrowerBorrower shall be effective with respect to all Borrowers. Each Borrower acknowledges and agrees that each Borrower shall be liable, failure on a joint and several basis, for all of Administrative the Loans and other Obligations, regardless of which Borrower actually may have received the proceeds of any of the Loans or other extensions of credit or the amount of such Loans received or the manner in which the Agent or any Lender of the Lenders accounts among the Borrowers for such Loans or other extensions of credit on its books and records, and further acknowledges and agrees that Loans to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender inure to the mutual benefit of all of the Borrowers and that the Agent and the Lenders are relying on the joint and several liability of the Borrowers in extending the Loans and other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereoffinancial accommodations hereunder. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any shall be entitled to subrogation and all contribution rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have from and against the other Borrowers to the extent any Borrower is required to pay to the Lenders any amount in excess of the Loans advanced directly to, or other Obligations incurred directly by, such Borrower or as otherwise available under Applicable Law; provided, however, that such subrogation and contribution rights are and shall be subject to the terms and conditions of this Section 14.1.
(b) It is the intent of the Borrowers, the Agent and the Lenders and any other Person directly or contingently liable for holding any of the Obligations hereunder, that each Borrower’s maximum obligations hereunder (such Borrower’s “Maximum Borrower Liability”) in any case or proceeding referred to below (but only in such a case or proceeding) shall not be in excess of:
(i) in a case or proceeding commenced by or against such Borrower under the Bankruptcy Code on or with respect within one (1) year from the date on which any of the Obligations of such Borrower are incurred, the maximum amount that would not otherwise cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Agent, the Lenders and any other Borrowers’ property Person holding any of the Obligations) to be avoidable or unenforceable against such Borrower under (A) Section 548 of the Bankruptcy Code or (B) any state fraudulent transfer or fraudulent conveyance act or statute applied in such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such Borrower under the Bankruptcy Code subsequent to one (1) year from the date on which any of the Obligations of such Borrower are incurred, the maximum amount that would not otherwise cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Agent, the Lenders and any other Person holding any of the Obligations) to be avoidable or unenforceable against such Borrower under any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such Borrower under any law, statute or regulation other than the Bankruptcy Code relating to dissolution, liquidation, conservatorship, bankruptcy, moratorium, readjustment of debt, compromise, rearrangement, receivership, insolvency, reorganization or similar debtor relief from time to time in effect affecting the rights of creditors generally (collectively, “Other Debtor Relief Law”), the maximum amount that would not otherwise cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Agent and the Lenders and any other Person holding any of the Obligations) to be avoidable or unenforceable against such Borrower under such Other Debtor Relief Law, including, without limitation, any property state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding. (The substantive state or federal laws under which the possible avoidance or unenforceability of the Obligations of any Borrower hereunder (or any other Obligations of such Borrower to the Agent, the Lenders and any other Person holding any of the Obligations) shall be determined in any such case or proceeding shall hereinafter be referred to as the “Avoidance Provisions”). Notwithstanding the foregoing, no provision of this Section 14.1(b) shall limit any Borrower’s liability for loans advanced directly or indirectly to it under this Agreement.
(c) To the extent set forth in Section 14.1(b) hereof, but only to the extent that the Obligations of any Borrower hereunder, or the transfers made by such Borrower under any Loan Document, would otherwise be subject to avoidance under any Avoidance Provisions if such Borrower is Collateral not deemed to have received valuable consideration, fair value, fair consideration or reasonably equivalent value for such transfers or obligations, or if such transfers or obligations of any Borrower hereunder would render such Borrower insolvent, or leave such Borrower with an unreasonably small capital or unreasonably small assets to conduct its business, or cause such Borrower to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of the obligations of such Borrower are deemed to have been incurred and transfers made under such Avoidance Provisions, then the obligations of such Borrower hereunder shall be reduced to that amount which, after giving effect thereto, would not cause the Obligations of such Borrower hereunder (or any other Obligations of such Borrower to the Agent, the Lenders or any other Person holding any of the Obligations), arising as so reduced, to be subject to avoidance under such Avoidance Provisions. This Section 14.1(c) is intended solely to preserve the rights hereunder of the Agent, the Lenders and any other Person holding any of the Obligations to the maximum extent that would not cause the obligations of the Borrowers hereunder to be subject to avoidance under any Avoidance Provisions, and none of the Borrowers nor any other Person shall have any right, defense, offset, or claim under this
Section 14.1 (c) as against the Agent, the Lenders or any other Person holding any of the Obligations that would not otherwise be available to such Person under the Avoidance Provisions.
(d) Each Borrower agrees that the Obligations may at any time and from time to time exceed the existence Maximum Borrower Liability of such Borrower, and may exceed the aggregate Maximum Borrower Liability of all Borrowers hereunder, without impairing this Agreement or performance any provision contained herein or affecting the rights and remedies of the Lenders or the Agent hereunder.
(e) In the event any Borrower (a “Funding Borrower”) shall make any payment or payments under this AgreementAgreement or shall suffer any loss as a result of any realization upon any collateral granted by it to secure its obligations hereunder, each other Borrower (each, a “Contributing Borrower”) shall contribute to such Funding Borrower an amount equal to such payment or payments made, or losses suffered, by such Funding Borrower determined as of the date on which such payment or loss was made multiplied by the ratio of (i) the Maximum Borrower Liability of such Contributing Borrower (without giving effect to any right to receive any contribution or other obligation to make any contribution hereunder), to (ii) the aggregate Maximum Borrower Liability of all Borrowers (including the Funding Borrowers) hereunder (without giving effect to any right to receive, or obligation to make, any contribution hereunder). Nothing in this Section 14.1(e) shall affect any Borrower’s joint and several liability to the Agent and the Lenders for the entire amount of its Obligations. Each Borrower covenants and agrees that its right to receive any contribution hereunder from a Contributing Borrower shall be subordinate and junior in right of payment to all obligations of the Borrowers to the Agent and the Lenders hereunder.
(f) No Borrower will exercise any rights that it may acquire by way of subrogation hereunder or under any other Loan Document 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 Borrower hereunder or under any other Loan Document, until termination of this Agreement all amounts owing to the Agent and Payment in Full the Lenders on account of the Obligations are paid in full in cash and the Commitments are terminated. If any amounts shall be paid to any Borrower on account of such subrogation or contribution rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Borrower in trust for the Agent and the Lenders, segregated from other funds of such Borrower, and shall, forthwith upon receipt by such Borrower, be turned over to the Agent in the exact form received by such Borrower (duly endorsed by such Borrower to the Agent, if required), to be applied against the Obligations, whether matured or unmatured, as provided for herein.
Appears in 1 contract
Samples: Reimbursement and Senior Secured Credit Agreement (Salton Inc)
Joint and Several Obligations. 11.1.1 The handling Each Borrower has determined that it is in the best interest and in pursuance of its legitimate business purposes to induce Lenders to extend credit to the Borrowers pursuant to this credit facility Agreement. Each Borrower acknowledges and represents the making of the Loans to Borrowers benefits each Borrower individually and as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their requestgroup. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereofAccordingly, each Borrower hereby indemnifies Administrative Agent acknowledges and each Lender agrees that it has joint and holds Administrative Agent several liability on all Obligations (as a principal and each Lender harmless from not as a surety, guarantor or other accommodation party) and against that such liability is absolute and unconditional and shall not in any and all liabilities, expenses, losses, damages and claims of damage manner be affected or injury asserted against Administrative Agent or any Lender impaired by any Person arising from acts or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance omissions whatsoever by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by Lender, and without limiting the indemnified party (as determined by a court generality of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be the foregoing, each Borrower’s joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and several liability on the part of each Borrower Obligations shall in no way not be affected impaired by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release acceptance by Administrative Agent or any Lender of any Collateral now other security for or thereafter acquired guarantors upon the Obligations under this Agreement or any other Loan Document or by any failure, neglect or omission on Administrative Agent’s or any Lender’s part to resort to any one or all of Borrowers for payment of the Obligations under this Agreement or any other Loan Document or to realize upon or protect any collateral security therefor. Each Borrower’s joint and several liability hereunder shall not in any manner be impaired or affected by who receives or uses the proceeds of the Loans or for what purposes such proceeds are used, and each Borrower waives notice of requests for extensions of credit issued by, and the Loans made to or for the account of, any other Borrower. Such joint and several liability of each Borrower shall also not be impaired or affected by (and each Lender and Administrative Agent, without notice to anyone, is hereby authorized to make from time to time) any sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in, modification or disposition of any collateral security for the Obligations under this Agreement or any other Loan Document or of any guaranty thereof or the invalidity, unenforceability or illegality of this Agreement or any other Loan Document as to any Borrower. In order to enforce payment of the Obligations under this Agreement and the other Loan Documents, foreclose or otherwise realize on any collateral security therefor, and to exercise the rights granted to Lenders and/or Administrative Agent hereunder and thereunder and under applicable law, no Lender nor the Administrative Agent shall be under any obligation at any time to first resort to any collateral security, property, liens or any other rights or remedies whatsoever, and Lenders and/or Administrative Agent shall have the right to enforce the Obligations under this Agreement and the other Loan Documents irrespective of whether or not other proceedings or steps are pending seeking resort to or realization upon or from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to of the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereofforegoing. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives and surrenders any defense to its joint and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of several liability on the Obligations under this Agreement or any other claim which such Loan Document based upon any of the foregoing. In furtherance thereof, each Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment such obligation is the Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance joint and several obligation of this Agreement, until termination of this Agreement and Payment in Full of the Obligationseach Borrower.
Appears in 1 contract
Samples: Loan Agreement (Towerstream Corp)
Joint and Several Obligations. 11.1.1 The handling If more than one Person is a Borrower hereunder, the following shall apply to each such Borrower:
(a) All Obligations, covenants and liabilities of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by under the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations Loan Documents shall be the joint and severalseveral Obligations, covenants and liabilities of each Borrower. All representations and warranties of any Borrower hereunder shall be deemed made by each Borrower. Each Borrower shall, without duplication, make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each any Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, the failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, other Borrower or the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any other Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 (b) Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of or any other claim which such Borrower may now or hereafter have against the any other Borrowers Borrower or against any Guarantor or other Person directly or contingently liable for the Obligations hereunderuntil all Obligations have been indefeasibly paid in full as determined by Lender.
(c) Lender is hereby authorized, without notice or against demand and without affecting the liability of any Borrower, at any time and from time to time, to (i) renew, extend or otherwise increase the time for payment of the Obligations; (ii) with the written agreement of any Borrower, change the terms relating to the Obligations or otherwise modify, amend or change the terms of any Note or other agreement, document or instrument now or hereafter executed by any Borrower; (iii) accept partial payments of the Obligations; (iv) take and hold any Collateral for the payment of the Obligations or for the payment of any guaranties of the Obligations and exchange, enforce, waive and release any such Collateral; (v) apply any such Collateral and direct the order or manner of sale thereof as Lender, in its sole discretion, may determine; and (vi) settle, release, compromise, collect or otherwise liquidate the Obligations and any Collateral therefor in any manner, all guarantor and surety defenses being hereby waived by each Borrower. Except as specifically provided in the Loan Agreement, Lender shall have the exclusive right to determine the time and manner of application of any payments or credits, whether received from any Borrower or any other source, and such determination shall be binding on all Borrowers. All such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of the Obligations that Lender shall determine, in its sole discretion, without affecting the validity or enforceability of the Obligations of any Borrower.
(d) Each Borrower hereby agrees that its obligations hereunder shall be unconditional, irrespective of (i) the absence of any attempt to collect the Obligations from any obligor or other action to enforce the same; (ii) the waiver or consent by Lender with respect to any provision of any instrument evidencing the Obligations, or any part thereof, or any other Borrowers’ property agreement heretofore, now or hereafter executed by a Borrower and delivered to Lender; (iii) failure by Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations; (iv) the institution of any proceeding under the Bankruptcy Code, or any similar proceeding, by or against a Borrower or Lxxxxx’s election in any such proceeding of the application of Section 1111(b)(2) of the Bankruptcy Code (or any similar law); (v) any borrowing or grant of a security interest by a Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code; (vi) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of Lxxxxx’s claim(s) for repayment of any of the Obligations; or (vii) any other circumstance other than payment in full of the Obligations which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety, including, without limitation, any property which failure by Lender to bring suit against any Person that might otherwise result in a discharge of such Borrower’s obligations and liabilities under the Loan Documents pursuant to Chapter 43 of the Texas Civil Practice & Remedies Code or any other similar applicable law.
(e) Each Borrower represents and warrants to Lender that (i) each Borrower has one or more common or affiliated shareholders, directors and officers, (ii) the businesses and corporate activities of each Borrower are closely related to, and substantially benefit, the business and corporate activities of the other, and (iii) each Borrower will receive a substantial economic benefit from entering into the transactions evidenced by the Loan Documents and will receive a substantial economic benefit from the Loans, whether or not such amount is Collateral used directly by such Borrower, and (iv) the Loans made pursuant to the Loan Documents are for the exclusive and indivisible benefit of the Borrowers.
(f) Notwithstanding any provisions of this Loan Agreement Schedule to the contrary, it is intended that the joint and several nature of the liability of the Borrowers for the Obligations and the Liens granted by the Borrowers to secure the Obligations, not constitute a Fraudulent Conveyance (as defined below). Consequently, Lender and each Borrower agree that if the liability of any individual Borrower for the Obligations), arising from or any Liens granted by such Borrower securing the existence or performance Obligations would, but for the application of this Agreementsentence, until termination constitute a Fraudulent Conveyance, the liability of such Borrower and the Liens securing such liability shall be valid and enforceable only to the maximum extent that would not cause such liability or such Lien to constitute a Fraudulent Conveyance, and the liability of such Borrower and this Loan Agreement and Payment in Full Schedule shall automatically be deemed to have been amended accordingly. For purposes hereof, the term “Fraudulent Conveyance” means a fraudulent conveyance under Section 548 of the ObligationsBankruptcy Code or a fraudulent conveyance or fraudulent transfer under the applicable provisions of any fraudulent conveyance or fraudulent transfer law or similar law of any state, nation or other governmental unit, as in effect from time to time.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling (a) Each Borrower (including without limitation the Company) shall bear liability under the Notes and Letter of Credit Outstandings and all other amounts payable hereunder jointly and severally with each other Borrower and whether or not such Borrower is designated in any Request for Advance as the Borrower requesting any Loans, it having been determined by each Borrower that it will benefit from the availability of credit to all Borrowers under the terms and conditions of this credit facility Agreement. Notwithstanding the foregoing, no Foreign Subsidiary Borrower shall be liable for the obligations of any other Borrower hereunder, and each Foreign Subsidiary Borrower shall be liable solely for the Loans where it is designated as a co-borrowing facility in Borrower, for Letters of Credit issued to it, and for its pro rata share of all fees and expenses and other sums due hereunder (other than principal and interest on the manner set forth in Loans) based upon the ratio of Loans and Letters of Credit outstanding to such Borrower to the total amount of Loans outstanding and Letter of Credit Outstandings hereunder.
(b) The liability of each Borrower under this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against Note for any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason obligations of the handling Borrowers, individually and collectively, owed to the Banks under this Agreement and each Note shall be unconditional and absolute irrespective of (a) any lack of enforceability of any obligation, (b) any change of the financing arrangements time, manner, place of Borrowers as provided hereinpayment, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent term of any obligation, (c) any law, regulation or order of any Lender jurisdiction affecting the genuineness, validity, or rights of the Banks, individually and collectively, with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such any obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender instrument evidencing any obligation, or (d) any other circumstance which might otherwise constitute a defense to or discharge of any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, the release of any property which other Borrower from such obligations. Each Borrower agrees that its obligations hereunder are irrevocable; that a separate action or actions may be brought and prosecuted against it or other remedies hereunder may be sought regardless of whether any other Borrower is Collateral joined in any such action or actions or subject to enforcement of any such remedies; and that it waives the benefit of any statute of limitations affecting its liabilities hereunder and each Note or the enforcement hereof or thereof if the action otherwise barred by such statute of limitations is brought against any other Borrower within such statute of limitations. Each Borrower hereby irrevocably waives any right of subrogation or contribution it may have against any other Borrower for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the Obligationsamounts paid hereunder.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The (a) All obligations of the Borrowers hereunder, under the Note and under the other Loan Documents shall be joint and several, each Borrower being fully liable for all obligations of all of the Borrowers hereunder and thereunder.
(b) Each of ABS and Quality hereby appoints Sanyo as its Administrative Agent for the purpose of executing and delivering Notices of Borrowing, Notices of Conversion or Continuation, Letter of Credit Applications or any other notice hereunder or under any other Loan Document. Such appointment may not be revoked, and the Administrative Agent and the Creditors may rely, on and take actions hereunder based upon, the continued effectiveness of such appointment, until the Obligations have been indefeasibly paid in full in cash, the Commitments have been terminated and all Letters of Credit have expired. Any Notice of Borrowing, Notice of Conversion or Continuation, LC Application or other notice or request relating to the extension of Loans or the issuance of Letters of Credit hereunder that has been executed by one or more Borrowers or by Sanyo (whether or not such notice states that is being delivered by Sanyo in its capacity as Borrowers' Administrative Agent) shall be deemed delivered by all of the Borrowers jointly and severally, and all Loans and Letters of Credit requested therein shall be deemed to have been requested by all of the Borrowers jointly and severally.
(c) Each Borrower acknowledges that the handling of this the credit facility contemplated hereby on a joint borrowing basis as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to the Borrowers and is done at their request. Neither request and agrees that neither the Administrative Agent nor any Lender Creditor shall incur liability have any responsibility to inquire into the use, apportionment, allocation or disposition of any Loan or Letter of Credit or the proceeds thereof. The Borrowers expect to derive substantial benefit, directly and indirectly, from the credit facility contemplated hereby and the credit extended by the Issuing Bank and the Lenders to the Borrowers thereunder.
(d) Each Borrower (a "Contributing Borrower") agrees (subject to paragraph (e) below) that, in the event a payment shall be made by any other Borrower (the "Claiming Borrower") in respect of the Obligations, or assets of any other Borrower shall be sold pursuant to any Security Document to satisfy a claim of any Creditor, the Contributing Borrower shall indemnify the Claiming Borrower in an amount equal to the amount of such payment, or the greater of the book value or the fair market value of such assets, as the case may be, in each case multiplied by a fraction of which the numerator shall be the net worth of the Contributing Borrower on the date hereof and the denominator shall be the aggregate net worth of all the Borrowers on the date hereof.
(e) Notwithstanding any provision of this Agreement to the contrary, all rights of the Borrowers under this Section 9.16 and all other rights of indemnity, contribution or subrogation under applicable law or otherwise shall be fully subordinated to and shall not be paid until the indefeasible payment in full in cash of the Obligations. No failure on the part of any Borrower to make the payments required by this Section 9.16 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any other Borrower with respect to the Obligations, and each Borrower shall remain liable for the full amount of all the Obligations.
(f) Anything contained herein to the contrary notwithstanding the obligations of each Borrower hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such Borrower's obligations hereunder subject to avoidance as a result thereof. To induce Administrative Agent fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other liabilities of such Borrower, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Borrower in respect of (a) intercompany Indebtedness to the Parent Guarantor or any of the Parent Guarantor's Subsidiaries, including the other Borrowers and Lenders (b) liabilities of such Borrower that are subordinated in right of payment to do so the Obligations) and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of such Borrower pursuant to applicable law, the provisions of this Agreement, or any other agreement providing for an equitable allocation among such Borrower and the other Borrowers or any other Affiliates of such Borrower.
(g) The joint and several obligations of the Borrowers described in consideration thereofthis Subsection shall remain in full force and effect without regard to and shall not be released, each affected or impaired by: (i) any amendment, assignment, transfer, modification of or addition or supplement to the Obligations, this Agreement or any other Loan Document; (ii) any extension, indulgence, increase in the Obligations or other action or inaction in respect of any of the Loan Documents or otherwise with respect to the Obligations, or any acceptance of security for, or guaranties of, any of the Obligations or loan documents, or any surrender, release, exchange, impairment or alteration of any such security or guaranties including without limitation the failing to perfect a security interest in any such security; (iii) any default by any Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against under, or any and all liabilitieslack of due execution, expensesinvalidity or unenforceability of, lossesor any irregularity or other defect in, damages and claims any of damage or injury asserted against the Loan Documents; (iv) any waiver by the Administrative Agent or any Lender Creditor or any other Person of any required performance or otherwise of any condition precedent or waiver of any requirement imposed by any Person arising from or incurred by reason of the handling Loan Documents, any guaranties or otherwise with respect to the Obligations; (v) any exercise or non-exercise of any right, remedy, power or privilege in respect of this Agreement or any of the financing arrangements other Loan Documents; (vi) any sale, lease, transfer or other disposition of Borrowers as provided herein, reliance by Administrative Agent the assets of any Borrower or any Lender on consolidation or merger of any request Borrower with or instruction from into any other person, corporation, or entity, or any transfer or other disposition by any Borrower or any other action taken holder of any shares of capital stock of any Borrower, (vii) any bankruptcy, insolvency, reorganization or similar proceedings involving or affecting any Borrower, (viii) the release or discharge of any Borrower from the performance or observance of any agreement, covenant, term or condition under any of the Obligations or contained in any of the Loan Documents by operation of law; or (ix) any other cause whether similar or dissimilar to the foregoing which, in the absence of this provision, would release, affect or impair the obligations, covenants, agreements and duties of any Borrower hereunder, including without limitation any act or omission by the Administrative Agent or any Lender Creditor or any other any Person which increases the scope of such Borrower's risk; and in each case described in this paragraph whether or not any Borrower shall have notice or knowledge of any of the foregoing, each of which is specifically waived by each Borrower. Each Borrower warrants to the Administrative Agent and the Creditors that it has adequate means to obtain from each other Borrower on a continuing basis information concerning the financial condition and other matters with respect to this Section 11.1 except due to willful misconduct or gross (each other Borrower and that it is not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability relying on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender Creditor to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral provide such information either now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to in the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defensesfuture.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the Obligations.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling obligations of this credit facility as a co-borrowing facility in each Borrower hereunder and under each of the manner set forth in this Agreement is solely as an accommodation other Loan Documents are joint and several. Each reference to Borrowers and at their request. Neither Administrative Agent nor the term “Borrower” hereunder or under any Lender other Loan Document shall incur liability be deemed to Borrowers as a result thereof. To induce Administrative Agent and Lenders refer to do so and in consideration thereofeach Borrower, each representation and warranty made by a Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage hereunder or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or under any other action taken Loan Document shall be deemed to have been made by Administrative Agent each Borrower; each covenant and undertaking on the part of a Borrower hereunder or under any Lender other Loan Document shall be deemed individually applicable with respect to this Section 11.1 except due each Borrower; and each event constituting a Default hereunder or under any other Loan Document shall be determined with respect to willful misconduct each Borrower. A separate action or gross actions may be brought and prosecuted against any Borrower whether an action is brought against any other Borrower or whether any other Borrower is joined in any such action or actions. Each Borrower waives the right to require Administrative Agent to:
(not merea) negligence proceed against any other Borrower; (b) proceed against or exhaust any Collateral held from any other Borrower; or (c) pursue any other remedy in Administrative Agent’s power whatsoever. Any consent on the part of a Borrower hereunder or under any other Loan Document shall be effective when provided by any Borrower, and Administrative Agent shall be entitled to rely upon any notice or consent given by any Borrower as being notice and consent given by all Borrowers hereunder and under each other Loan Document. In the indemnified party (as determined event any obligation of a Borrower hereunder and under each other Loan Document is deemed by a court of competent jurisdiction to be an agreement by any Borrower to answer for the debt or default of another Borrower or as a hypothecation of property as security therefor, each Borrower represents, warrants and agrees that: (i) no representation has been made to it as to the creditworthiness of any other Borrower; (ii) it has established an adequate means of obtaining from each other Borrower, on a continuing basis, financial or other information pertaining to each other Borrower’s financial condition; (iii) it expressly waives diligence, demand, presentment, protest and notice of every kind and nature whatsoever, consents to the alteration or release by Administrative Agent (in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and severalany manner) of any Collateral now or hereafter held in connection with any obligations under any Loan Document, and consents that Administrative Agent and any Borrower may deal with each Borrower shall make payment upon the maturity of the Obligations by acceleration other in connection with said obligations or otherwise, and such obligation and liability on including the part voluntary grant of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to additional security for the obligations of any Borrower, failure or alter any contracts now or hereafter existing between them, in any manner whatsoever, including, without limitation, the renewal, extension, acceleration, changes in time for payment, and increases or decreases in any rate of interest or other amounts owing, all without in any way altering the liability of any Borrower, or affecting any security for such obligations. Upon the occurrence and during the continuance of any Default, Administrative Agent or is hereby expressly given the right, at its option, to proceed in the enforcement of any Lender to give any Borrower notice Loan Document independently of borrowing or any other notice, remedy or security it may at any failure of time hold in connection with such Loan Document and it shall not be necessary for Administrative Agent to proceed upon or against and/or exhaust any Lender other security or remedy before proceeding to pursue or preserve enforce its rights against any Borrower. Until the Loan and all other Debt or indebtedness under the Loan Documents have been paid in full, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly further waives any and all rights of right or subrogation, reimbursement, indemnity, exoneration, contribution contribution, indemnification, setoff or other recourse in respect of sums paid to Lender by any other claim which such Borrower. Borrowers do not intend that any Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or with respect be deemed to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the Obligationsbe a guarantor.
Appears in 1 contract
Samples: Loan Agreement (Altitude International Holdings, Inc.)
Joint and Several Obligations. 11.1.1 The handling If more than one Person is a Borrower hereunder, the following shall apply:
(a) All Obligations, covenants and liabilities of this credit facility as a co-borrowing facility in Borrower hereunder shall be the manner set forth in this Agreement is solely as an accommodation to Borrowers joint and at their requestseveral Obligations, covenants and liabilities of each Borrower. Neither Administrative Agent nor any Lender All representations and warranties of Borrower hereunder shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, be deemed made by each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each such Borrower. The Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each the Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, the failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, Borrower or the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 (b) Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of or any other claim which such Borrower may now or hereafter have against the any other Borrowers Borrower or against any other Person directly or contingently liable for the Obligations until all Obligations have been indefeasibly paid in full as determined by Lender.
(c) Each Borrower represents and warrants to Lender that (i) the Borrowers have one or more common or affiliated shareholders, directors and officers, (ii) the businesses and corporate activities of each Borrower are closely related to, and substantially benefit, the business and corporate activities of the other, (iii) each Borrower will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of the Loan hereunder, in each case, whether or against or with respect to not such amount is used directly by such Borrower and (iv) the other Borrowers’ property (including, without limitation, any property which Loan made hereunder is Collateral for the Obligations)exclusive and indivisible benefit of the Borrower as though, arising from the existence or performance for purposes of this Agreement, until termination of this Agreement and Payment in Full of the ObligationsBorrowers constituted a single entity.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling obligations of this credit facility as a co-borrowing facility in the manner set forth in this Agreement Guarantor hereunder are joint and several if Guarantor is solely as an accommodation to Borrowers more than one person or entity, are separate and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason independent of the handling obligations of the financing arrangements Borrower and of Borrowers as provided hereinany other guarantor who has executed and delivered this or similar or dissimilar guarantees, reliance by Administrative Agent and a separate action or any Lender on any request or instruction from any actions may be brought and prosecuted against Guarantor whether action is brought against Borrower or any other action taken by Administrative Agent guarantor or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each whether Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other noticeguarantor is joined in any action or actions. Release of one or more of the Guarantors shall not impair or diminish the liability of any remaining Guarantor, except to the extent of monies actually received by Bank from the released Guarantor as a consequence of such release. Guarantor waives any failure rights the Guarantor might otherwise have under Colorado Revised Statutes Sections 00-00-000 or 00-00-000 (or under any corresponding future statute or rule of Administrative Agent law in any jurisdiction) by reason of any release of fewer than all of the guarantors from the Guaranteed Obligations, all in such manner and upon such terms as the Bank may deem proper, and without notice to or further assent from the Guarantors, and all without affecting this Guaranty or the obligations of the Guarantor hereunder. The obligations of Guarantor hereunder shall survive and continue in full force and effect until payment in full of the Indebtedness is actually received by Bank and the period of time has expired during which any payment made by Borrower or Guarantor to Bank may be determined to be a preferential payment in any Insolvency Proceeding, notwithstanding any release or termination of Borrower’s or any Lender other guarantor’s liability by express or implied agreement with Bank or by operation of law and notwithstanding that the Indebtedness or any part thereof is deemed to pursue have been paid or preserve its rights against any Borrowerdischarged by operation of law or by some act or agreement of Bank. For purposes of this Guaranty, the release by Administrative Agent or any Lender Indebtedness shall be deemed to be paid only to the extent that Bank actually receives immediately available funds and to the extent of any Collateral now credit bid by Bank at any foreclosure or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrowertrustee’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution sale of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable security for the Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the ObligationsIndebtedness.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 (a) Each Borrower agrees that its obligations and liabilities (including the Indebtedness) under this Agreement and all other Transaction Documents are joint and several obligations regardless of which Borrower receives the proceeds of the Transactions or the manner in which the Borrowers, the Agent or the Lenders account therefor in their respective records. Each Borrower acknowledges and agrees that, for purposes of the Transaction Documents, the Borrowers constitute a single integrated financial enterprise and that each receives a benefit from the availability of credit under this Agreement to each other Borrower.
(b) Each Borrower acknowledges that it will enjoy significant benefits from the business conducted by the other Borrowers because of, inter alia, their combined ability to bargain with other Persons including without limitation, their ability to receive the credit extensions under this Agreement and the other Transaction Documents, which would not have been available to an individual Borrower acting alone. Each Borrower has determined that it is in its best interest to procure the credit facilities contemplated hereunder, with the credit support of the other Borrowers as contemplated by this Agreement and the other Transaction Documents.
(c) The handling Agent and the Lenders have advised the Borrowers that they are unwilling to enter into this Agreement and the other Transaction Documents and make available the credit facilities extended hereby or thereby to a Borrower unless the other Borrowers agree, among other things, to be jointly and severally liable for the due and proper payment of the Indebtedness of the other Borrowers under this Agreement and the other Transaction Documents. Each Borrower has determined that it is in its best interest and in pursuit of its purposes that it so induce the Agent and the Lenders to extend credit pursuant to this Agreement and the other Transaction Documents (i) because of the desirability to each Borrower of the credit facilities hereunder and the interest rates and the modes of borrowing available hereunder; (ii) because a Borrower may engage in transactions jointly with other Borrowers; and (iii) because a Borrower may require, from time to time, access to funds under this Agreement for the purposes herein set forth. Each Borrower, individually, expressly understands, agrees and acknowledges, that the credit facilities contemplated hereunder would not be made available on the terms herein in the absence of the collective credit of the Borrowers and the joint and several liability of all such Persons. Accordingly, each Borrower individually acknowledges that the benefit of the accommodations made under this Agreement to the Borrowers as a whole constitutes reasonably equivalent value, regardless of the amount of the indebtedness actually borrowed by, advanced to, or the amount of credit provided to, any individual Borrower.
(d) Notwithstanding anything herein, in the Notes or in any other Transaction Document to the contrary, in any action or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if, as a result of applicable law relating to fraudulent conveyance or fraudulent transfer, including Section 548 of the Bankruptcy Code or any applicable provisions of comparable state law (collectively, "Fraudulent Transfer Laws"), the obligations of a Borrower under this Agreement, the Notes or any other Transaction Document would, after giving effect to (i) all other liabilities of such Borrower, contingent or otherwise, that are relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Borrower in respect of intercompany Debt to another Borrower); and (ii) the value as assets of such Borrower (as determined under the applicable provisions of such Fraudulent Transfer Laws) and of any rights of subrogation, contribution, reimbursement, indemnity or similar rights held by such Borrower, be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under this Agreement, the Notes or any other Transaction Document, then the amount of such liability shall, without any further action by such Borrower, any Lender, the Agent or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(e) Subject to the terms of this credit facility Agreement and the other Transaction Documents, the Agent is hereby authorized, without notice or demand and without affecting the liability of any Borrower hereunder, to, at any time and from time to time, (i) renew, extend or otherwise increase the time for payment of the Indebtedness; (ii) with the written agreement of Borrowers, accelerate or otherwise change the terms relating to the Indebtedness or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument now or hereafter executed by any Borrower and delivered to Agent; (iii) accept partial payments of the Indebtedness; (iv) take and hold security or collateral for the payment of the Indebtedness or for the payment of any guaranties of the Indebtedness and exchange, enforce, waive and release any such security or collateral; (v) apply such security or collateral and direct the order or manner of sale thereof as a co-borrowing facility Agent, in its sole discretion, may determine; (vi) settle, release, compromise, collect or otherwise liquidate the manner set forth Indebtedness and any security or collateral therefor in any manner; and (vii) exercise, in its sole discretion, any right, remedy or combination thereof that may then be available to Agent, without affecting or impairing the Indebtedness of any Borrower. Except as specifically provided in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling other Transaction Documents, Agent shall have the exclusive right to determine the time and manner of the financing arrangements application of Borrowers as provided hereinany payments or credits, reliance by Administrative Agent or any Lender on any request or instruction whether received from any Borrower or any other action taken by Administrative source, and such determination shall be binding on all Borrowers. All such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of the Indebtedness as Agent shall determine in its sole discretion without affecting the validity or enforceability of the Indebtedness of any Lender other Borrower.
(f) Each Borrower hereby agrees that, except as hereinafter provided, its liability with respect to this Section 11.1 except due the Indebtedness hereunder shall be unconditional, irrespective of (i) the absence of any attempt to willful misconduct collect the Indebtedness from any obligor or gross other action to enforce the same; (not mereii) negligence the waiver or consent by Agent with respect to any provision of any instrument evidencing the indemnified party (as determined Indebtedness, or any part thereof, or any other agreement heretofore, now or hereafter executed by a court Borrower (other than the Borrower with respect to which such waiver or consent is granted) and delivered to Agent; (iii) the failure by Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Indebtedness; (iv) the institution of competent jurisdiction any proceeding under the United States Bankruptcy Code, or any similar proceeding, by or against a Borrower or Agent's election in any such proceeding of the application of Section 1111(b)(2) of the United States Bankruptcy Code; (v) any borrowing or grant of a final and nonsecurity interest by a Borrower as debtor-appealable judgment)in-possession, under Section 364 of the United States Bankruptcy Code; (vi) the disallowance, under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, of all or any portion of Agent's claim(s) for repayment of any of the Indebtedness; or (vii) any other circumstance other than payment in full of the Indebtedness which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety.
11.1.2 All Obligations (g) Each Borrower hereby waives (i) any right of redemption with respect to the Collateral after the sale hereunder, and all rights, if any, of marshalling of the Collateral or other collateral or security for the Indebtedness; and (ii) any right (except as shall be joint required by applicable statute and several, and each Borrower shall make payment upon cannot be waived) to require the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to (A) proceed against any Borrower, failure of Administrative Agent or any Lender to give any other Borrower notice of borrowing or any other noticePerson, (B) proceed against or exhaust any failure other collateral or security for any of Administrative Agent the Indebtedness, or (C) pursue any remedy in the Agent's or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereofLender's power whatsoever. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly hereby waives any and all rights defense based on or arising out of subrogation, reimbursement, indemnity, exoneration, contribution any defense of any other claim which such Borrower may now or hereafter have against the other Borrowers or any other Person directly or contingently liable for other than payment in full of the Obligations hereunderIndebtedness, or against or with respect to the other Borrowers’ property (including, without limitation, any property which defense based on or arising out of the disability of any other Borrower or any other Person, or the unenforceability of the Indebtedness or any part thereof for any reason, or the cessation for any reason of the liability of any other Borrower other than payment in full of the Indebtedness. The Agent may, at its election, foreclose on any security held by the Agent by one or more judicial or non-judicial sales, whether or not every aspect of any such sale is Collateral commercially reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Agent may have against any other Borrower or any other Person, or any security, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent the Indebtedness has been paid in full. Each Borrower waives all rights and defenses arising out of an election of remedies by the Agent, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower's rights of subrogation and reimbursement against any other Borrower.
(h) Until all Indebtedness has been paid and satisfied in full and all Revolving Credit Commitments hereunder are terminated, no payment made by or for the Obligations)account of a Borrower including, arising without limitation, (i) a payment made by such Borrower on behalf of the liabilities of any other Borrower; or (ii) a payment by any other person under any guaranty, shall entitle such Borrower, by subrogation or otherwise, to any payment from the existence any other Borrower or from or out of any other Borrower's property and such Borrower shall not exercise any right or remedy against any other Borrower or any property of any other Borrower by reason of any performance of such Borrower of its joint and several liability hereunder.
(i) Any notice given by one Borrower hereunder shall constitute and be deemed to be notice given by all Borrowers, jointly and severally. Notice given by Agent or Lenders to AMC hereunder or pursuant to any other Transaction Documents in accordance with the terms hereof shall constitute notice to each and every Borrower. The knowledge of one Borrower shall be imputed to all Borrowers and any consent by one Borrower shall constitute the consent of and shall bind all Borrowers.
(j) This Section 13.24 is intended to define the relative rights of Borrowers and nothing set forth in this Agreementsection is intended to or shall impair the Indebtedness of Borrowers, until termination jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement or any other Transaction Documents. Nothing contained in this section shall limit the liability of any Borrower to pay the credit facilities made directly or indirectly to that Borrower and Payment in Full accrued interest, fees and expenses with respect thereto or for which such Borrower shall be primarily liable.
(k) The parties hereto acknowledge that any rights of contribution and indemnification of a Borrower against another Borrower shall constitute assets of each Borrower to which such contribution and indemnification is owing. The rights of any indemnifying Borrower against the other Borrowers shall be exercisable upon the full and indefeasible payment of the ObligationsIndebtedness and the termination of the credit facilities hereunder.
(1) This Agreement is a primary and original obligation of each of the Borrowers and each of the Borrowers shall be liable for all existing and future Indebtedness of any other Borrower as fully as if such Indebtedness were directly incurred by such Borrower.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Air Methods Corp)
Joint and Several Obligations. 11.1.1 The handling of this credit facility as a co-borrowing facility in In order to induce the manner set forth in Lenders to enter into this Agreement is solely as an accommodation and to Borrowers extend credit hereunder and at their requestin recognition of the direct benefits to be received by the Borrower from the proceeds of the Loans made to the Co-Borrower and of the direct and indirect benefits to be received by the Co-Borrower from the proceeds of the Loans made to the Borrower, each of the Borrower and the Co-Borrower hereby agree that all obligations of the Borrower and the Co-Borrower under this Agreement are joint and several. Neither If any or all of the Obligations become due and payable hereunder, each of the Borrower and the Co-Borrower unconditionally promises to pay such indebtedness to the Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent for its own account and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and the account of each Lender and holds Administrative Agent and each Lender harmless from and against on demand, together with any and all liabilitiesreasonable expenses which may be incurred by the Administrative Agent or the Lenders in collecting any of the Obligations. All payments made by the Borrower and the Co-Borrower under this Section 9.14 shall be made on the same basis as payments by the Borrower or the Co-Borrower under Sections 2.10, expenses2.11 and 2.18. The obligations of the Borrower and the Co-Borrower under this Section 9.14 are a continuing obligation of the Borrower and the Co-Borrower and are independent of the obligations of the other Person obligated thereon, lossesand a separate cause of action or actions may be brought or prosecuted against either of the Borrower and the Co-Borrower to enforce the provisions contained in this Section 9.14, damages irrespective of whether any action is brought against any other Person or any other guarantor.
(a) The liability of each of the Borrower and claims the Co-Borrower hereunder is exclusive and independent of damage any security for or injury asserted against other guaranty of the Obligations whether executed by the Borrower, the Co-Borrower, any other guarantor or by any other party, and the liability of each of the Borrower and the Co-Borrower hereunder shall not be affected or impaired by (i) any direction as to application of payment by any of the Borrower, the Co-Borrower or by any other party, or (ii) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or of any other party as to the Obligations, or (iii) any payment on or in reduction of any such other guaranty or undertaking, or (iv) any dissolution, termination or increase, decrease or change in personnel by either of the Borrower or the Co-Borrower, or (v) any payment made to the Administrative Agent or the Lenders on the Obligations which the Administrative Agent or the Lenders repay to either the Borrower or the Co-Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each of the Borrower and the Co-Borrower waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding.
(b) If claim is ever made upon the Administrative Agent or any Lender by for repayment or recovery of any Person arising from amount or incurred amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of the handling (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including either of the financing arrangements Borrower or the Co-Borrower), then and in such event each of Borrowers the Borrower and the Co-Borrower agrees that any such judgment, decree, order, settlement or compromise shall be binding upon each of the Borrower and the Co-Borrower, notwithstanding any revocation hereof or other instrument evidencing any liability of either of the Borrower or the Co-Borrower, and each of the Borrower and the Co-Borrower shall be and remain jointly and severally liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as provided hereinif such amount had never originally been received by any such payee.
(c) The obligations of each of the Borrower and the Co-Borrower hereunder are independent of the obligations of any other guarantor, reliance by Administrative Agent and a separate action or actions may be brought and prosecuted against each of the Borrower and the Co-Borrower whether or not action is brought against any Lender on any request or instruction from any Borrower other guarantor or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunderand whether or not any other guarantor or such other Person be joined in any such action or actions. Any payment by either of the Borrower or the Co-Borrower or other circumstance which operates to toll any statute of limitations as to such Person shall operate to toll the statute of limitations as to each of the Borrower and the Co-Borrower.
(d) Any Indebtedness of the Borrower now or hereafter owing to the Co-Borrower, and any Indebtedness of the Co-Borrower now or hereafter owing to the Borrower, is hereby subordinated to the Obligations owing to the Administrative Agent and the Lenders; and if the Administrative Agent so requests at a time when an Event of Default exists and is continuing, all such Indebtedness of the Borrower to the Co-Borrower or of the Co-Borrower to the Borrower shall be collected, enforced and received by the Borrower or the Co-Borrower, as applicable, for the benefit of the Administrative Agent and the Lenders and be paid over to the Administrative Agent on its own behalf and on behalf of the Lenders on account of the Obligations, but without affecting or impairing in any manner the liability of either of the Borrower or the Co-Borrower under the other provisions of this Section 9.14.
(e) Each of the Borrower and the Co-Borrower hereby waives any right (except as shall be required by applicable statute and cannot be waived) to require the Administrative Agent or the Lenders to
(i) proceed against the Borrower or the Co-Borrower, as applicable, any other guarantor or any other party, (ii) proceed against or exhaust any security held from the Borrower, the Co-Borrower, any other guarantor or any other party or (iii) pursue any other remedy in the Administrative Agent's or the Lenders' power whatsoever. Each of the Borrower and the Co-Borrower waives any defense based on or arising out of any defense of the Borrower or the Co-Borrower, as applicable, any other guarantor or any other party, other than payment in full of the Obligations, based on or arising out of the disability of the Borrower or the Co-Borrower, as applicable, any other guarantor or any other party, or against the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower or the Co-Borrower, as applicable, other than payment in full of the Obligations.
(f) Each of the Borrower and the Co-Borrower, with respect to the direct obligations of its co-obligor, waives all presentments, demands for performance, protests and notices, including without limitation notices of nonperformance, notices of protest, notice of acceleration, notices of intent to accelerate, notices of dishonor, and notices of the existence, creation or incurring of new or additional Obligations. Each of the Borrower and the Co-Borrower assumes all responsibility for being and keeping itself informed of the other Borrowers’ property co-obligor's financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks which the Borrower and the Co-Borrower, as applicable, assumes and incurs hereunder, and agrees that the Administrative Agent and the Lenders shall have no duty to advise either of the Borrower or the Co-Borrower of information known to them regarding such circumstances or risks.
(g) It is the desire and intent of the Borrower and the Co-Borrower that their joint and several obligations under this Agreement shall be enforced against each of them to the fullest 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 of either of the Borrower and the Co-Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any property which is Collateral for the Obligationsapplicable state or federal law relating to fraudulent conveyances or transfers), arising from then the existence amount of the Obligations owed by the Borrower or performance the Co-Borrower, as applicable, shall be deemed to be reduced and the Borrower or the Co-Borrower, as applicable, shall pay the maximum amount of the Obligations which would be permissible under applicable law.
(h) The obligations of the Borrower and the Co-Borrower hereunder shall remain in full force and effect until the Commitments have terminated and the principal and interest on the Loans and all other amounts payable under this Agreement shall have been paid in full. The provisions of this Agreement, until Section 9.14 shall survive the termination of this Agreement and Payment in Full any satisfaction or discharge of the ObligationsBorrower or the Co-Borrower by virtue of any payment, any court order or any applicable law. The obligations of each of the Borrower and the Co-Borrower under this Section 9.14 constitute the full recourse obligations of either of the Borrower and the Co-Borrower, as applicable, enforceable against it to the full extent of all its property.
(i) Each of the Borrower and the Co-Borrower irrevocably waives any and all rights to which it may be entitled, by operation of law or otherwise, upon making any payment hereunder to be subrogated to the rights of the payee against its co-obligor with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by such co-obligor in respect thereof in any bankruptcy, insolvency or similar proceeding involving such co-obligor as debtor commencing within one year after the making of any payment by it under this Agreement or in respect of the Loans. Each of the Borrower and the Co-Borrower hereby further waives any right to enforce via subrogation any other remedy which the Administrative Agent or any Lender now has or may hereafter have against its co-obligor and any right of indemnity, reimbursement or contribution against such co-obligor that it may have by virtue of its performance of its obligations hereunder until such time as the Administrative Agent and the Lenders have been indefeasibly paid in full and the Commitments have expired or been terminated.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent to the Lender or any Lender the Issuer to any Borrower, failure of Administrative Agent the Lender or any Lender the Issuer to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent the Lender or any Lender the Issuer to pursue or preserve its rights against any Borrower, the release by Administrative Agent the Lender or any Lender the Issuer of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent the Lender or any Lender the Issuer to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives . Without limiting the generality of the foregoing, each of the Borrowers hereby acknowledges and agrees that any and all rights actions, inactions or omissions by any one or more, or all, of subrogationthe Borrowers in connection with, reimbursementrelated to or otherwise affecting this Agreement or any of the other Loan Documents are the obligations of, indemnityand inure to and are binding upon, exonerationeach and all of the Borrowers, contribution jointly and severally. Each covenant, agreement, obligation, representation and warranty of any other claim which the Borrowers contained herein constitutes the joint and several undertaking of each Borrower. Each Borrower acknowledges that the obligations of such Borrower may now or hereafter have against undertaken herein might be construed to consist, at least in part, of the guaranty of obligations of the other Borrowers and, in full recognition of that fact, each Borrower consents and agrees that the Lender may, at any time and from time to time, without notice or demand, whether before or after any actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness hereof as to such Borrower: (a) supplement, restate, modify, amend, increase, decrease, extend, renew or otherwise change the time for payment or the terms of this Agreement or any part thereof, including any increase or decrease of the rate(s) of interest thereon; (b) supplement, restate, modify, amend, increase, decrease or waive, or enter into or give any agreement, approval or consent with respect to, this Agreement or any part thereof, or any of the Loan Documents, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (c) accept partial payments; (d) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the order or manner of sale thereof as the Lender, in its sole and absolute discretion may determine; (e) release any Person from any personal liability with respect to this Agreement or any part thereof; (f) settle, release on terms satisfactory to the Lender or by operation of applicable law or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (g) consent to the merger, change or any other Person directly restructuring or contingently termination of the corporate or partnership existence of any Borrower, or any other Person, and correspondingly restructure the obligations evidenced hereby, and any such merger, change, restructuring or termination shall not affect the liability of any Borrower or the continuing effectiveness hereof, or the enforceability hereof with respect to all or any part of the obligations evidenced hereby. Each Borrower states and acknowledges that: (w) pursuant to this Agreement, the 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 the Obligations obligations; (x) it has determined that it will benefit specifically and materially from the advances of credit contemplated by this Agreement; (y) it is both a condition precedent to the obligations of the Lender hereunder and a desire of the Borrowers that each Borrower execute and deliver to the Lender this Agreement; and (z) the Borrowers have requested and bargained for the structure and terms of and security for the advances contemplated by this Agreement. Each Borrower agrees if such Borrower’s joint and several liability hereunder, or against or with respect if any Liens securing such joint and several liability, would, but for the application of this Section 14.2, be unenforceable under applicable law, such joint and several liability and each such Lien shall be valid and enforceable to the maximum extent that would not cause such joint and several liability or such Lien to be unenforceable under applicable law, and such joint and several liability and such Lien shall be deemed to have been automatically amended accordingly at all relevant times. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans or Advances made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and, be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers’ property , equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s “Allocable Amount” (including, without limitation, any property as defined below) and the denominator of which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full sum of the Obligations.Allocable Amounts of all of the
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling Subject to Section 2.17, all Obligations shall constitute joint and several obligations of this credit facility as the Borrowers (provided that, prior to the Redemption Date, Omnipoint shall have no obligation with respect to the VoiceStream Obligations) and shall be secured by the Administrative Agent's security interest and Lien upon all of the Collateral, and by all other security interests and Liens heretofore, now or at any time hereafter granted by either of the Borrowers to the Administrative Agent, to the extent provided herein and under the Loan Documents under which such Lien arises; provided that, prior to the Redemption Date, any Lien under the Loan Documents on Collateral of Omnipoint or any Subsidiary of Omnipoint (i) will secure only the Omnipoint Obligations and (ii) will not secure Omnipoint Obligations in respect of Omnipoint Refinancing Loans except to the extent permitted by the indentures governing the Omnipoint Senior Notes. Each Borrower expressly represents and acknowledges that it is part of a co-borrowing facility in common enterprise with the manner set forth in this Agreement is solely as an accommodation to Borrowers other Borrower and at their request. Neither Administrative Agent nor that any Lender shall incur liability to Borrowers as a result thereof. To induce financial accommodations by the Administrative Agent and the Lenders to do so the other Borrower hereunder and in consideration thereofunder the other Loan Documents are and will be of direct and indirect interest, each benefit and advantage to both Borrowers. Each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against acknowledges that any and all liabilitiesRequest for Advance, expenses, losses, damages and claims conversion request or other notice given by either of damage or injury asserted against the Borrowers to the Administrative Agent or any Lender by shall bind both Borrowers, and that any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence notice given by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to either of the Borrowers shall be effective with respect to all Borrowers. Each Borrower acknowledges and agrees that each Borrower shall be liable, on a joint and several basis, for all of the Loans (provided that, prior to the Redemption Date, Omnipoint shall have no obligation other than with respect to the Omnipoint Obligations), regardless of which Borrower actually may have received the proceeds of any Borrower, failure of the Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which the Administrative Agent or any Lender accounts for such Loans or other extensions of credit on its books and records, and further acknowledges and agrees that Loans to give any either Borrower notice inure to the mutual benefit of borrowing or any both Borrowers and that the Administrative Agent and the Lenders are relying on the joint and several liability of the Borrowers (provided that, prior to the Redemption Date, Omnipoint shall have no obligation other notice, any failure of than with respect to the Omnipoint Obligations) in extending the Loans and other financial accommodations hereunder. Each Borrower shall be entitled to subrogation and contribution rights from and against the other Borrower to the extent such Borrower is required to pay to the Administrative Agent or any Lender any principal, interest or other amount attributable to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender Loans advanced hereunder to the other Borrowers Borrower or any Collateral for as otherwise available under Applicable Law; provided, however, that such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any subrogation and all contribution rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or with respect are and shall be subject to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance terms and conditions of this Agreement, until termination of this Agreement and Payment in Full of the ObligationsSection 2.16.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 (a) The handling Obligations of this credit facility as a cothe Borrowers hereunder and under the other Loan Documents are joint and several. Notwithstanding any payment made by any Borrower hereunder or any set-borrowing facility in off or application of funds of any Borrower by the manner set forth in this Agreement is solely as an accommodation Bank, no Borrower shall be entitled to Borrowers and at their request. Neither Administrative Agent nor be subrogated to any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and of the rights of the Bank against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any other Borrower or any other action taken by Administrative Agent collateral security or any Lender with respect to this Section 11.1 except due to willful misconduct guaranty or gross (not mere) negligence right of offset held by the indemnified party (as determined Bank for the payment of the Obligations, nor shall any Borrower seek or be entitled to seek any contribution or reimbursement from any other Borrower in respect of payments made by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and severalsuch Borrower hereunder, and each Borrower shall make payment upon the maturity until all of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower are paid in full. If any amount shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender paid to any BorrowerBorrower on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, failure such amount shall be held by such Borrower in trust for the Bank, segregated from other funds of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any such Borrower, and shall, forthwith upon receipt by such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender Borrower, be turned over to the other Borrowers or any Collateral for Bank in the exact form received by such Borrower (duly indorsed by such Borrower’s Obligations , if required), to be applied against the Obligations, whether matured or unmatured, in such order as the lack thereof. Each Borrower waives all suretyship defensesBank may determine.
11.1.3 Each (b) Notwithstanding anything to the contrary herein, any Borrower expressly waives that does not qualify as an Eligible Contract Participant (as defined in the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended) or otherwise does not qualify as an “indirect proprietorship” pursuant to the rules of the Commodity Futures Trading Commission, shall not be deemed a party to any guaranty of or jointly and all rights of subrogationseverally liable for any Swap Obligation with the Bank entered into or modified on or after October 12, reimbursement2012, indemnity, exoneration, contribution of and shall not be liable for any swap obligations to Bank arising from such Swap Obligation. The foregoing exclusion shall have no effect on any other claim which Swap Obligations of such Borrower.
(c) If at any time a Borrower may now guarantees or hereafter have against the other Borrowers or other Person directly or contingently is jointly and severally liable for the Obligations hereunder, or against or a Swap Obligation in connection with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, such Borrower, to the extent it is an Eligible Contract Participant (as defined in the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended) (each an “Eligible ECP Guarantor”), unconditionally and irrevocably agrees to provide such funds or other support as needed by each other Borrower to honor all of its obligations under any Swap Agreement in respect of any Swap Obligation. The obligation of each Eligible ECP Guarantor under this Section 2.5(c) shall remain in full force and effect until termination the Swap Obligations shall have been repaid in full and all Swap Agreements are terminated. Each Eligible ECP Guarantor intends that this Section 2.5(c) shall constitute a “keepwell, support or other agreement” for the benefit of this Agreement and Payment in Full each other Borrower for all purposes of section 1a(18)(A)(v)(II) of the ObligationsCommodity Exchange Act (7 U.S.C. Section 1 et seq.).
Appears in 1 contract
Samples: Credit Agreement (Air T Inc)
Joint and Several Obligations. 11.1.1 The handling (a) Each of this credit facility as the Borrowers acknowledges and agrees that (i) it is a co-borrowing facility in borrower hereunder and shall be jointly and severally, with the other Borrowers, directly and primarily liable for the Finance Obligations regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans or other extensions of credit received or the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither which the Administrative Agent nor and/or any Lender or L/C Issuer accounts for such Loans or other extensions of credit on its books and records, (ii) each of the Borrowers shall incur liability have the obligations of co-maker and shall be primary obligors with respect to Borrowers as a result thereof. To induce Administrative Agent all Loans, the Letters of Credit and Lenders the other Finance Obligations, it being agreed that such extensions of credit to do so and in consideration thereof, each Borrower hereby indemnifies inure to the benefit of all Borrowers, and (iii) the Administrative Agent and each Lender of the Lenders and holds Administrative Agent L/C Issuers is relying on such joint and several liability of the Borrowers as co-makers in extending the Loans and issuing the Letters of Credit hereunder. Each Borrower’s obligations with respect to Loans made to it or with respect to any Letters of Credit issued for its account, and each Lender harmless Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder, with respect to Loans made to the other Borrower hereunder or with respect to any Letters of Credit issued for the account of any other Borrower hereunder, shall be separate and distinct obligations, but all such Finance Obligations shall be primary obligations of each Borrower. Each Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, by acceleration or otherwise) of any principal of, or interest on, any Finance Obligation payable by it to the Lender, it will forthwith pay the same, without notice of demand.
(b) Each Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to the Finance Obligations of the other Borrowers hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or enforceability, Table of Contents avoidance or subordination of the Finance Obligations of the other Borrowers or other document evidencing all or any part of the Finance Obligations of the other Borrowers, (ii) the absence of any attempt to collect the Finance Obligations from and against any and all liabilitiesother Borrower, expensesor any other security therefor, lossesor the absence of any other action to enforce the same, damages and claims (iii) the waiver, consent, extension, forbearance or granting of damage or injury asserted against Administrative any indulgence by any Agent or any Lender or L/C Issuer with respect to any provision of any instrument evidencing the Finance Obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative other Borrower and delivered to any Agent or any Lender on or L/C Issuer, (iv) the failure by any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender or L/C Issuer to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security for the Finance Obligations of any other Borrower, (v) any borrowing or grant of a security interest by any other Borrower, as debtors-in-possession under Section 364 of the Bankruptcy Code, (vi) the disallowance of all or any portion of any Agent’s or any Lender’s or L/C Issuer’s claim(s) for the repayment of the Finance Obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (vii) any other circumstances which might constitute a legal or equitable discharge or defense of any other Borrower.
(c) With respect to each Borrower’s obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to this Section 11.1 except due the Finance Obligations of any of the other Borrowers hereunder, each Borrower waives, until the Revolving Termination Date, any right to willful misconduct enforce any right of subrogation or gross (not mere) negligence by any remedy which any Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and severalFinance Obligations, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwiseany benefit of, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensionsright to participate in, renewals and forbearance granted by Administrative any security or collateral given to any Agent or any Lender to secure payment of the Finance Obligations.
(d) No payment or payments made by any Borrower, failure of Administrative the Borrowers or any other Person or received or collected by any Agent or any Lender to give or L/C Issuer from any Borrower notice of borrowing the Borrowers or any other notice, Person by virtue of any failure of Administrative Agent action or proceeding or any Lender set-off or appropriation or application at any time or from time to pursue time in reduction of or preserve its rights against any Borrowerin payment of the Finance Obligations shall be deemed (except to the extent Finance Obligations are satisfied) to modify, release or otherwise affect the release by Administrative Agent or any Lender liability of any Collateral now or thereafter acquired from any BorrowerBorrower under this Agreement, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently shall remain liable for the Finance Obligations hereunder, or against or with respect to until the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the ObligationsRevolving Termination Date.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling obligations of this credit facility as a co-borrowing facility in each Borrower hereunder (if more than one Borrower) are joint and several. Each reference to the manner set forth term ‘‘Borrower’’ in this Agreement is solely as an accommodation shall be deemed to Borrowers refer to each Borrower; each representation and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined warranty made by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations Borrower shall be joint deemed to have been made by each Borrower; each covenant and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability undertaking on the part of each a Borrower shall be deemed individually applicable with respect to each Borrower; and each event constituting an Event of Default under this Agreement shall be determined with respect to each Borrower. A separate action or actions may be brought and prosecuted against any Borrower whether an action is brought against the other Borrower or whether the other Borrower is joined in no way any such action or actions. Each Borrower waives any right to require Lender to:
(a) proceed against the other Borrower; (b) proceed against or exhaust any security held from the other Borrower; or (c) pursue any other remedy in Lenders’ power whatsoever. Notices under this Agreement required to be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender provided to Borrowers shall be effective if provided to any Borrower. Any consent on the part of Borrowers under this Agreement shall be effective when provided by any Borrower, failure and Lender shall be entitled to rely upon any notice or consent given by any Borrower as being notice or consent given by all Borrowers hereunder. In the event any obligation of Administrative Agent Borrowers under this Agreement is deemed to be an agreement by any individual Borrower to answer for the debt or default of another Borrower or as a hypothecation of property as security therefor, each Borrower represents and warrants that: (a) no representation has been made to it as to the creditworthiness of any other Borrower and (b) it has established adequate means of obtaining from any other Borrower on a continuing basis, financial or other information pertaining to such other Borrower’s financial condition. Each Borrower expressly waives diligence, demand, presentment, protest and notice of every kind and nature whatsoever, consents to the alteration or release by Lender in any manner of any security now or hereafter held in connection with any obligations now or hereafter under or secured by this Agreement, and consents that Lender and any Borrower may deal with each other in connection with said obligations or otherwise, or alter any contracts now or hereafter existing between them, in any manner whatsoever, including, without limitation, the renewal, extension, acceleration, changes in time for payment, and increases or decreases in any payment, rate of interest or other amounts owing, all without in any way altering the liability of any Borrower or affecting any security for such obligations. Should any default be made in the payment of any such obligations or in the terms or conditions of any security held, Lender is hereby expressly given the right, at its option, to proceed in the enforcement of this Agreement independently of any other remedy or security it may at any time hold in connection with such obligations secured and it shall not be necessary for Lender to give any Borrower notice of borrowing proceed upon or against or exhaust any other notice, security or remedy before proceeding to enforce proceed upon or against or exhaust any failure of Administrative Agent other security or any Lender remedy before proceeding to pursue or preserve enforce its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly further waives any and all rights right of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers contribution, indemnification, setoff or other Person directly or contingently liable for the recourse in respect of sums paid to Lender by any Borrower until such time as all Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment are paid in Full of the Obligationsfull.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling (a) All Obligations shall constitute joint and several obligations of this credit facility as Borrowers. Each Borrower expressly represents and acknowledges that it is part of a co-borrowing facility in common enterprise with the manner set forth in this Agreement is solely as an accommodation to other Borrowers and at their requestthat any financial accommodations by Lender to any other Borrowers hereunder and under the other Loan Documents are and will be of direct and indirect interest, benefit and advantage to all Borrowers. Neither Administrative Agent nor Each Borrower acknowledges that any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims notice of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower Borrowing or any other action taken notice given by Administrative Agent or any other Borrower to Lender shall bind all Borrowers, and that any notice given by Lender to any Borrower shall be effective with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final all Borrowers. Each Borrower acknowledges and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and agrees that each Borrower shall make payment upon the maturity be liable, on a joint and several basis, for all of the Loans and other Obligations, regardless of which such Person actually may have received the proceeds of any of the Loans or other extensions of credit or the amount of such Loans or other extensions of credit received or the manner in which Lender accounts among Borrowers for such Loans or other Obligations by acceleration or otherwiseon its books and records, and such obligation further acknowledges and liability agrees that Loans and other extensions of credit to any Borrower inure to the mutual benefit of all of Borrowers and that Lender is relying on the part joint and several liability of each Borrowers in extending the Loans and other financial accommodations under the Loan Documents and Bank Product Agreements, provided, that notwithstanding anything to the contrary in this Section, no Borrower shall in no way be affected liable for any Swap Obligation incurred by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any an Obligor other than such Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for extent such Borrower’s Swap Obligation would constitute Excluded Swap Obligations or the lack thereof. with respect to such Borrower at such time.
(b) Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any shall be entitled to subrogation and all contribution rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have from and against the other Borrowers to the extent such Person is required to pay to Lender any amount in excess of the Loans advanced directly to, or other Obligations incurred directly by, such Person directly or contingently liable for as otherwise available under applicable law; provided, however, that such subrogation and contribution rights are and shall be subject to the terms and conditions of Section 9.15(c) through 9.15(d).
(c) It is the intent of each Borrower, Lender, and any other Person holding any of the Obligations hereunder, that the maximum obligations of each Borrower hereunder (such Person’s “Maximum Borrower Liability”) in any case or against proceeding referred to below (but only in such a case or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment proceeding) shall not be in Full of the Obligations.excess of:
Appears in 1 contract
Samples: Credit Agreement (Alico Inc)
Joint and Several Obligations. 11.1.1 The handling Each Borrower shall be jointly and severally liable for the Obligations arising in connection with Loans made to it and Letters of this credit facility Credit issued for its account and the Obligations arising in connection with Loans made to the other Borrowers and Letters of Credit issued for the account of the other Borrowers; provided, however, that if it is at any time determined that any Borrower is liable as guarantor (and not as co-obligor or co-borrower) with respect to such Obligations arising in connection with Loans made to the other Borrowers and Letters of Credit issued for the account of other Borrowers (the "Guaranteed Obligations), each Borrower hereby agrees to the terms set forth on Exhibit G hereto with respect to the Guaranteed Obligations; provided further, however, that notwithstanding any other provision hereof, the obligation of each Borrower, whether as a co-borrowing facility in obligor with respect to the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers Obligations or as a result thereofguarantor with respect to Guaranteed Obligations, is limited to its respective Maximum Obligated Amount. To induce Administrative Agent Any action to enforce payment of the Obligations may be commenced by the Lender against any Borrower as a sole defendant without naming the other Borrowers in such proceeding, and Lenders each Borrower hereby acknowledges and agrees that the other Borrowers shall not be claimed by any Borrower to do so be an indispensable party in any such proceeding. Each Borrower further acknowledges and agrees that the Lender will suffer hardship and irreparable harm if the Lender is delayed in consideration thereofpursuing its remedies against any of the Borrowers. Upon the occurrence and during the continuance of an Unmatured Event of Default or an Event of Default, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless agrees not to exercise any right to claim or seek indemnification, recourse, subrogation, reimbursement or contribution from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person the other Borrowers arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by Agreement, the indemnified party (as determined by a court Loans and Letters of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, Credit and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly hereby waives any and all rights of right to claim or seek such indemnification, recourse, subrogation, reimbursement, indemnity, exoneration, reimbursement or contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or arising with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, the Loans and Letters of Credit until termination of this Agreement and Payment in Full all obligations of the ObligationsLender to make Loans and issue Letters of Credit hereunder have terminated and the Obligations have been irrevocably paid in full.
Appears in 1 contract
Samples: Credit and Security Agreement (Simon Transportation Services Inc)
Joint and Several Obligations. 11.1.1 The handling Each Borrower hereby unconditionally and irrevocably agrees it is jointly and severally liable to the Administrative Agent and the Lenders for the payment and performance of this credit facility as a co-borrowing facility in the manner set forth in Obligations. Each Borrower acknowledges and agrees that its joint and several liability on the Obligations owed by any Borrower or Borrowers under this Agreement is solely as an accommodation to Borrowers absolute and at their request. Neither unconditional and shall not in any manner be affected or impaired by any of acts or omissions whatsoever by the Administrative Agent nor or any Lender Lender, and without limiting the generality of the foregoing, each Borrower's joint and several liability on the Obligations shall incur not be impaired by any failure, neglect or omission on the Administrative Agent's or any Lender's part to resort to any one or all of the Borrowers for payment of the Obligations. Each Borrower's joint and several liability on the Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the Loans or for what purposes such proceeds are used, and each Borrower waives notice of Borrowing requests issued by, and Loans made to, the other Borrowers. Each Borrower hereby agrees not to Borrowers as a result thereofexercise or enforce any right of exoneration, contribution, reimbursement, recourse, or subrogation available to such Borrower against any party liable for payment of any Obligations, unless and until the Obligations have been paid and satisfied in full and termination of the Commitments hereunder. To induce Administrative Agent By its acceptance below, each Borrower hereby expressly waives and Lenders surrenders any defense to do so its joint and in consideration several liability on the Obligations based upon any of the foregoing. In furtherance thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as agrees that wherever in this Agreement it is provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any that a Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to any Borrower, failure of Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence a payment or performance of this Agreementan obligation, until termination such obligation is the joint and several obligation of this Agreement and Payment in Full of the Obligationseach Borrower.
Appears in 1 contract
Joint and Several Obligations. 11.1.1 The handling (a) All of this credit facility as a co-borrowing facility in the manner set forth in obligations of the Borrowers under this Agreement is solely as an accommodation to Borrowers and at their request. Neither the other Credit Documents shall be joint and several.
(b) Each Borrower agrees that neither the Administrative Agent nor any Lender shall incur liability have any responsibility to Borrowers inquire into the apportionment, allocation or disposition of any Borrowings or Letters of Credit as a result thereof. To induce Administrative Agent among the Borrowers.
(c) For the purpose of implementing the joint borrower provisions of this Agreement and Lenders to do so and in consideration thereofeach of the Credit Documents, each Borrower hereby indemnifies irrevocably appoints Argosy as its agent and attorney-in-fact for all purposes of this Agreement and each of the Credit Documents, including the giving and receiving of notices and other communications, the making of requests for, or conversions or continuations of, Borrowings and/or Letters of Credit, the execution and delivery of certificates and the receipt and allocation of disbursements from the Lenders. Argosy hereby accepts such appointment. The Administrative Agent and each Lender may regard any notice or other communication pursuant to any Credit Document from Argosy as a notice or communication from all Borrowers and holds may give any notice or communication required or permitted to be given to any Borrower or Borrowers hereunder to Argosy on behalf of such Borrower or Borrowers. Each Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by Argosy shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.
(d) Each Borrower hereby waives, with respect to itself and its obligations hereunder, any right (except as shall be required by applicable statute and cannot be waived) to require the Administrative Agent and each or any Lender harmless from and to (i) proceed against any and all liabilitiesother Borrower, expensesany guarantor or any other Person, losses(ii) proceed against or exhaust any security held from any other Borrower, damages and claims any guarantor or any other Person or (iii) pursue any other remedy in the Administrative Agent or any Lender’s power whatsoever. Each Borrower hereby waives any defense based on or arising out of damage any defense of any other Borrower, any guarantor or injury asserted against any other Person other than payment in full of the Obligations, including any defense based on or arising out of the disability of any other Borrower, any guarantor or any other Person, or the enforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower other than payment in full of the Obligations. Subject to the terms of this Agreement, the Administrative Agent or any Lender may, at its election, foreclose on any security held by the Administrative Agent or any Lender by one or more judicial or non-judicial sales, whether or not every aspect of any Person arising from such sale is commercially reasonable (to the extent such sale is permitted by applicable law), or incurred by reason of exercise any other right or remedy the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on may have against any request other Borrower, any guarantor or instruction from any other Person, or any security, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent the Obligations have been paid in full. Each Borrower waives all rights and defenses arising out of any such election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed any of such Borrower’s, any other Borrower’s or any guarantor’s rights of subrogation and reimbursement against any other Borrower or any guarantor.
(e) Each Borrower waives any defense, right of set-off, claim or counterclaim whatsoever and any and all other action taken rights, benefits, protections and other defenses available to it now or at any time hereafter.
(f) Each Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by real property. This means, among other things:
(i) The Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct may collect from such Borrower without first foreclosing on any real or gross (not mere) negligence personal property collateral pledged by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment)such Borrower, any other Borrower or any guarantor.
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon (ii) If the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to forecloses on any real property collateral pledged by such Borrower or any other Borrower:
(A) The amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, failure of even if the collateral is worth more than the sale price.
(B) The Administrative Agent or any Lender to give any may collect from each Borrower notice of borrowing even if the Administrative Agent or any Lender, by foreclosing on the real property collateral, has destroyed any right such Borrower may have to collect from any other noticeBorrower or any guarantor. This is an unconditional and irrevocable waiver of any rights and defenses each Borrower may have because such Borrower’s debt is secured by real property.
(iii) Each Borrower waives all rights and defenses arising out of an election of remedies by the Administrative Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against the principal.
(g) Each Borrower assumes all responsibility for being and keeping itself informed of each other Borrower’s and any guarantor’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks which such Borrower or any guarantor assumes and incurs under any Credit Document, and agrees that neither the Administrative Agent nor any Lender shall have no duty to advise such Borrower, any failure other Borrower or any guarantor of information known to the Administrative Agent or any Lender to pursue regarding such circumstances or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defensesrisks.
11.1.3 Each Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have against the other Borrowers or other Person directly or contingently liable for the Obligations hereunder, or against or with respect to the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of the Obligations.
Appears in 1 contract
Samples: Credit Agreement (Argosy Gaming Co)
Joint and Several Obligations. 11.1.1 (a) Each Borrower agrees that its obligations and liabilities (including the Indebtedness) under this Agreement and all other Transaction Documents are joint and several obligations regardless of which Borrower receives the proceeds of the Transactions or the manner in which the Borrowers, the Agent or the Lenders account therefor in their respective records. Each Borrower acknowledges and agrees that, for purposes of the Transaction Documents, the Borrowers constitute a single integrated financial enterprise and that each receives a benefit from the availability of credit under this Agreement to each other Borrower.
(b) Each Borrower acknowledges that it will enjoy significant benefits from the business conducted by the other Borrowers because of, inter alia, their combined ability to bargain with other Persons including without limitation, their ability to receive the credit extensions under this Agreement and the other Transaction Documents, which would not have been available to an individual Borrower acting alone. Each Borrower has determined that it is in its best interest to procure the credit facilities contemplated hereunder, with the credit support of the other Borrowers as contemplated by this Agreement and the other Transaction Documents.
(c) The handling Agent and the Lenders have advised the Borrowers that they are unwilling to enter into this Agreement and the other Transaction Documents and make available the credit facilities extended hereby or thereby to a Borrower unless the other Borrowers agree, among other things, to be jointly and severally liable for the due and proper payment of the Indebtedness of the other Borrowers under this Agreement and the other Transaction Documents. Each Borrower has determined that it is in its best interest and in pursuit of its purposes that it so induce the Agent and the Lenders to extend credit pursuant to this Agreement and the other Transaction Documents (i) because of the desirability to each Borrower of the credit facilities hereunder and the interest rates and the modes of borrowing available hereunder; (ii) because a Borrower may engage in transactions jointly with other Borrowers; and (iii) because a Borrower may require, from time to time, access to funds under this Agreement for the purposes herein set forth. Each Borrower, individually, expressly understands, agrees and acknowledges, that the credit facilities contemplated hereunder would not be made available on the terms herein in the absence of the collective credit of the Borrowers and the joint and several liability of all such Persons. Accordingly, each Borrower individually acknowledges that the benefit of the accommodations made under this Agreement to the Borrowers as a whole constitutes reasonably equivalent value, regardless of the amount of the indebtedness actually borrowed by, advanced to, or the amount of credit provided to, any individual Borrower.
(d) Notwithstanding anything herein, in the Notes or in any other Transaction Document to the contrary, in any action or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if, as a result of applicable law relating to fraudulent conveyance or fraudulent transfer, including Section 548 of the Bankruptcy Code or any applicable provisions of comparable state law (collectively, “Fraudulent Transfer Laws”), the obligations of a Borrower under this Agreement, the Notes or any other Transaction Document would, after giving effect to (i) all other liabilities of such Borrower, contingent or otherwise, that are relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Borrower in respect of intercompany Consolidated Debt to another Borrower); and (ii) the value as assets of such Borrower (as determined under the applicable provisions of such Fraudulent Transfer Laws) and of any rights of subrogation, contribution, reimbursement, indemnity or similar rights held by such Borrower, be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under this Agreement, the Notes or any other Transaction Document, then the amount of such liability shall, without any further action by such Borrower, any Lender, the Agent or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
(e) Subject to the terms of this credit facility Agreement and the other Transaction Documents, the Agent is hereby authorized, without notice or demand and without affecting the liability of any Borrower hereunder, to, at any time and from time to time, (i) renew, extend or otherwise increase the time for payment of the Indebtedness; (ii) with the written agreement of Borrowers, accelerate or otherwise change the terms relating to the Indebtedness or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument now or hereafter executed by any Borrower and delivered to Agent; (iii) accept partial payments of the Indebtedness; (iv) take and hold security or collateral for the payment of the Indebtedness or for the payment of any guaranties of the Indebtedness and exchange, enforce, waive and release any such security or collateral; (v) apply such security or collateral and direct the order or manner of sale thereof as a co-borrowing facility Agent, in its sole discretion, may determine; (vi) settle, release, compromise, collect or otherwise liquidate the manner set forth Indebtedness and any security or collateral therefor in any manner; and (vii) exercise, in its sole discretion, any right, remedy or combination thereof that may then be available to Agent, without affecting or impairing the Indebtedness of any Borrower. Except as specifically provided in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling other Transaction Documents, Agent shall have the exclusive right to determine the time and manner of the financing arrangements application of Borrowers as provided hereinany payments or credits, reliance by Administrative Agent or any Lender on any request or instruction whether received from any Borrower or any other action taken by Administrative source, and such determination shall be binding on all Borrowers. All such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of the Indebtedness as Agent shall determine in its sole discretion without affecting the validity or enforceability of the Indebtedness of any Lender other Borrower.
(f) Each Borrower hereby agrees that, except as hereinafter provided, its liability with respect to this Section 11.1 except due the Indebtedness hereunder shall be unconditional, irrespective of (i) the absence of any attempt to willful misconduct collect the Indebtedness from any obligor or gross other action to enforce the same; (not mereii) negligence the waiver or consent by Agent with respect to any provision of any instrument evidencing the indemnified party (as determined Indebtedness, or any part thereof, or any other agreement heretofore, now or hereafter executed by a court Borrower (other than a Borrower with respect to which such waiver or consent is granted) and delivered to Agent; (iii) the failure by Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Indebtedness; (iv) the institution of competent jurisdiction any proceeding under the United States Bankruptcy Code, or any similar proceeding, by or against a Borrower or Agent’s election in any such proceeding of the application of Section 1111(b)(2) of the United States Bankruptcy Code; (v) any borrowing or grant of a final and nonsecurity interest by a Borrower as debtor-appealable judgment)in-possession, under Section 364 of the United States Bankruptcy Code; (vi) the disallowance, under Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, of all or any portion of Agent’s claim(s) for repayment of any of the Indebtedness; or (vii) any other circumstance other than payment in full of the Indebtedness which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety.
11.1.2 All Obligations (g) Each Borrower hereby waives (i) any right of redemption with respect to the Collateral after the sale hereunder, and all rights, if any, of marshalling of the Collateral or other collateral or security for the Indebtedness; and (ii) any right (except as shall be joint required by applicable statute and several, and each Borrower shall make payment upon cannot be waived) to require the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to (A) proceed against any Borrower, failure of Administrative Agent or any Lender to give any other Borrower notice of borrowing or any other noticePerson, (B) proceed against or exhaust any failure other collateral or security for any of Administrative Agent the Indebtedness, or (C) pursue any remedy in the Agent’s or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Administrative Agent or any Lender to the other Borrowers or any Collateral for such BorrowerLender’s Obligations or the lack thereofpower whatsoever. Each Borrower waives all suretyship defenses.
11.1.3 Each Borrower expressly hereby waives any and all rights defense based on or arising out of subrogation, reimbursement, indemnity, exoneration, contribution any defense of any other claim which such Borrower may now or hereafter have against the other Borrowers or any other Person directly or contingently liable for other than payment in full of the Obligations hereunderIndebtedness, or against or with respect to the other Borrowers’ property (including, without limitation, any property which defense based on or arising out of the disability of any other Borrower or any other Person, or the unenforceability of the Indebtedness or any part thereof for any reason, or the cessation for any reason of the liability of any other Borrower other than payment in full of the Indebtedness. The Agent may, at its election, foreclose on any security held by the Agent by one or more judicial or non-judicial sales, whether or not every aspect of any such sale is Collateral commercially reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Agent may have against any other Borrower or any other Person, or any security, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent the Indebtedness has been paid in full. Each Borrower waives all rights and defenses arising out of an election of remedies by the Agent, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against any other Borrower.
(h) Until all Indebtedness has been paid and satisfied in full and all Revolving Credit Commitments and Delayed Draw Term Loan Commitments hereunder are terminated, no payment made by or for the Obligations)account of a Borrower including, arising without limitation, (i) a payment made by such Borrower on behalf of the liabilities of any other Borrower; or (ii) a payment by any other person under any guaranty, shall entitle such Borrower, by subrogation or otherwise, to any payment from the existence any other Borrower or from or out of any other Borrower’s property and such Borrower shall not exercise any right or remedy against any other Borrower or any property of any other Borrower by reason of any performance of such Borrower of its joint and several liability hereunder.
(i) Any notice given by one Borrower hereunder shall constitute and be deemed to be notice given by all Borrowers, jointly and severally. Notice given by Agent or Lenders to AMC hereunder or pursuant to any other Transaction Documents in accordance with the terms hereof shall constitute notice to each and every Borrower. The knowledge of one Borrower shall be imputed to all Borrowers and any consent by one Borrower shall constitute the consent of and shall bind all Borrowers.
(j) This Section 13.24 is intended to define the relative rights of Borrowers and nothing set forth in this Agreementsection is intended to or shall impair the Indebtedness of Borrowers, until termination jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement or any other Transaction Documents. Nothing contained in this section shall limit the liability of any Borrower to pay the credit facilities made directly or indirectly to that Borrower and Payment in Full accrued interest, fees and expenses with respect thereto or for which such Borrower shall be primarily liable.
(k) The parties hereto acknowledge that any rights of contribution and indemnification of a Borrower against another Borrower shall constitute assets of each Borrower to which such contribution and indemnification is owing. The rights of any indemnifying Borrower against the other Borrowers shall be exercisable upon the full and indefeasible payment of the ObligationsIndebtedness and the termination of the credit facilities hereunder.
(l) This Agreement is a primary and original obligation of each of the Borrowers and each of the Borrowers shall be liable for all existing and future Indebtedness of any other Borrower as fully as if such Indebtedness were directly incurred by such Borrower.
(m) Each Borrower further agrees that its Indebtedness hereunder shall not be impaired in any manner whatsoever by any bankruptcy, extensions, moratoria or other relief granted to any other Borrower pursuant to any statute presently in force or hereafter enacted.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Air Methods Corp)
Joint and Several Obligations. 11.1.1 The handling Each Borrower shall be jointly and severally liable hereunder with each other Borrower for the obligations of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereofeach such other Borrower hereunder, each Borrower hereby indemnifies Administrative Agent shall be obligated and responsible for the performance of each Lender other Borrower under this Agreement, and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender a default by any Person arising Borrower hereunder shall be a default by each other Borrower hereunder. Each Borrower waives:
(a) any right of contribution from or incurred by reason any other Borrower until all of the handling of obligations have been fully and finally paid; (b) any right to require the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted by Administrative Agent or any Lender to institute any action or suit or to exhaust rights and remedies of the Administrative Agent or such Lender against any Collateral or any Borrower before proceeding against such Borrower or any other Borrower, failure ; and (c) any obligation of the Administrative Agent or any Lender to give marshal any assets in favor of any Borrower. Each Borrower notice consents that the Administrative Agent and each Lender may, without in any manner affecting such Borrower’s joint and several liability for any obligations hereunder: (i) extend in whole or in part (by renewal or otherwise), modify, accelerate, change or release any obligation of borrowing or any other noticeBorrower; (ii) sell, release, surrender, modify, impair, exchange, substitute or extend the duration or the time for the performance or payment of any failure and all Collateral or other property, of any nature and from whomsoever received, held by the Administrative Agent or any Lender as security for the payment or performance of any obligations to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now Borrower or thereafter acquired from any other obligations of any Borrower; and (iii) settle, and such agreement by each Borrower to pay upon adjust or compromise any notice issued pursuant thereto is unconditional and unaffected by prior recourse by of claims of the Administrative Agent or any Lender to the other Borrowers or against any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
11.1.3 is part of an integrated family of companies, and, accordingly each Borrower desires to have the availability of one common credit facility instead of separate credit facilities, and each Borrower has requested that the Lenders extend such a common credit facility. Each Borrower expressly waives any acknowledges that the Lenders will be lending against, and all rights of subrogationrelying on a lien upon, reimbursement, indemnity, exoneration, contribution its inventory and proceeds thereof and other collateral and credit enhancements even though the proceeds of any other claim which particular Advance made hereunder may not be advanced directly to such Borrower, and that such Borrower may now or hereafter have against will nevertheless benefit by the other Borrowers or other Person directly or contingently liable for making of all such Advances by the Obligations hereunder, or against or with respect to Lenders and the other Borrowers’ property (including, without limitation, any property which is Collateral for the Obligations), arising from the existence or performance availability of this Agreement, until termination a single credit facility of this Agreement and Payment in Full of the Obligationsa size greater than each could independently warrant.
Appears in 1 contract
Samples: Wholesale Financing Agreement (Palm Harbor Homes Inc /Fl/)
Joint and Several Obligations. 11.1.1 The handling of this credit facility as a co-borrowing facility in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Administrative Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Administrative Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Administrative Agent and each Lender and holds Administrative Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Administrative Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Administrative Agent or any Lender on any request or instruction from any Borrower or any other action taken by Administrative Agent or any Lender with respect to this Section 11.1 except due to willful misconduct or gross (not merea) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
11.1.2 All Obligations shall be constitute joint and severalseveral obligations of Borrowers and shall be secured by Administrative Agent’s security interest and Lien upon all of the Collateral, and by all other security interests and Liens heretofore, now or at any time hereafter granted by each Borrower shall make payment upon to Administrative Agent to the maturity of extent provided in the Obligations by acceleration or otherwise, Loan Documents under which such Lien arises. Each Borrower expressly represents and such obligation and liability on the part of each Borrower shall in no way be affected by acknowledges that any extensions, renewals and forbearance granted financial accommodations by Administrative Agent or any Lender to any Borrowerother Borrower hereunder and under the other Loan Documents are and will be of direct and indirect interest, failure of benefit and advantage to all Borrowers. Each Borrower acknowledges that any notice given by any other Borrower to Administrative Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Administrative Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Administrative Agent or any Lender of any Collateral now or thereafter acquired from any Borrowershall bind all Borrowers, and such agreement by each Borrower to pay upon that any notice issued pursuant thereto is unconditional and unaffected by prior recourse given by Administrative Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereofBorrower shall be effective with respect to all Borrowers. Each Borrower waives acknowledges and agrees that each Borrower shall be liable, on a joint and several basis, for the Loans and all suretyship defensesother Obligations, regardless of which Borrower actually may have received the proceeds of the Loans or other extensions of credit or the amount of the Loans or other extensions of credit received or the manner in which Administrative Agent or any Lender accounts among Borrowers for the Loans or other Obligations on its books and records, and further acknowledges and agrees that the Loans and other extensions of credit to any Borrower inure to the mutual benefit of all of Borrowers and that each of Administrative Agent and Lenders is relying on the joint and several liability of Borrowers in extending the Loans and other financial accommodations under the Loan Documents.
11.1.3 (b) Each Borrower expressly waives any shall be entitled to subrogation and all contribution rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Borrower may now or hereafter have from and against the other Borrowers to the extent any Borrower is required to pay to Secured Creditors any amount in excess of the Loans directly to, or other Person Obligations incurred directly by, such Borrower or contingently liable for as otherwise available under applicable law; provided, however, that such subrogation and contribution rights are and shall be subject to the terms and conditions of Sections 2.11(c), 2.11(d), 2.11(f) and 2.11(g).
(c) Each Borrower, and by its acceptance of this Agreement, each of Administrative Agent and Lenders hereby confirms that it is the intention of all such Persons that this Agreement and the Obligations hereunderof each Borrower hereunder not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act (the “UFCA”), the Uniform Fraudulent Transfer Act (the “UFTA”) or any other federal, state or foreign (including Canada) bankruptcy, insolvency, receivership or similar law to the extent applicable to this Agreement and the Obligations of each Borrower hereunder (collectively, the “Avoidance Provisions”). To effectuate the foregoing intention, each of Administrative Agent and Lenders, by its acceptance of this Agreement, and Borrowers hereby irrevocably agree that the Obligations of each Borrower under this Agreement at any time shall be limited to the maximum amount as will result in the Obligations of such Borrower under this Agreement not constituting a fraudulent transfer or conveyance (such Borrower’s “Maximum Borrower Liability”). This Section 2.11(c) is intended solely to preserve the rights hereunder of Administrative Agent, each Lender and any other Person holding any of the Obligations to the maximum extent that would not cause the obligations of Borrowers hereunder to be subject to avoidance under any Avoidance Provisions, and none of Borrowers nor any other Person shall have any right, defense, offset, or claim under this Section 2.11(c) as against Administrative Agent, any Lender or any other Person holding any of the Obligations that would not otherwise be available to such Person under the Avoidance Provisions.
(d) To the extent that any Borrower shall, under this Agreement, make a payment (a “Borrower’s Payment”) of a portion of the Obligations, then, without limiting its rights of subrogation against any Borrower, such Borrower shall be entitled to contribution and indemnification from, and be reimbursed by, each other Borrower and the other Guarantors (collectively, the “Contributing Parties”) in an amount, for each such Contributing Party, equal to a fraction of such Borrower’s Payment, the numerator of which fraction is such Contributing Party’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Contributing Parties. As of any date of determination, the “Allocable Amount” of each Contributing Party shall be equal to the maximum amount of liability which could be asserted against such Contributing Party hereunder with respect to the other Borrowers’ property applicable Borrower’s Payment without (includingi) rendering such Contributing Party “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code or Section 2 of either the UFTA or the UFCA, (ii) leaving such Contributing Party with unreasonably small capital, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA, or (iii) leaving such Contributing Party unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA. Each Borrower’s right of contribution shall be subject to the terms and conditions of Sections 2.11(f) and 2.11(g). The provisions of this Section 2.11 shall in no respect limit the obligations and liabilities of any Borrower to any Secured Creditor, and each Borrower shall remain liable to each Secured Creditor for the full amount guaranteed by such Borrower hereunder. Notwithstanding the foregoing, no provision of this Section 2.11(d) shall limit any Borrower’s liability for any portion of the Loans advanced directly or indirectly to it under this Agreement.
(e) Each Borrower agrees that the Obligations may at any time and from time to time exceed the Maximum Borrower Liability of such Borrower and may exceed the aggregate Maximum Borrower Liability of all Borrowers hereunder, without limitationimpairing this Agreement or any provision contained herein or affecting the rights and remedies of any Secured Creditor hereunder.
(f) No Borrower will exercise any rights which it may acquire by way of subrogation hereunder or under any other Loan Document or at law by any payment made hereunder or otherwise, nor shall any property which is Collateral Borrower seek or be entitled to seek any contribution or reimbursement from any other Borrower in respect of payments made by such Borrower hereunder or under any other Loan Document, until all amounts owing to Secured Creditors on account of the Obligations are paid in full in cash. If any amounts shall be paid to any Borrower on account of such subrogation or contribution rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Borrower in trust for Secured Creditors, segregated from other funds of such Borrower, and shall, forthwith upon receipt by such Borrower, be turned over to Administrative Agent, for the Obligationsbenefit of Secured Creditors, in the exact form received by such Borrower (duly endorsed by such Borrower to Administrative Agent, if required), arising from the existence or performance of this Agreement, until termination of this Agreement and Payment in Full of to be applied against the Obligations, whether matured or unmatured, as provided for herein.
(g) Nothing in this Section 2.11 shall affect any Borrower’s joint and several liability to Secured Creditors for the entire amount of its Obligations. Each Borrower covenants and agrees that its right to receive any contribution hereunder from a Borrower shall be subordinate and junior in right of payment to all obligations of Borrowers to Secured Creditors under the Loan Documents.
Appears in 1 contract
