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Common use of Joint and Several Clause in Contracts

Joint and Several. (a) Each of the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 4 contracts

Samples: Receivables Purchase Agreement (Dean Foods Co), Receivables Purchase Agreement (Dean Foods Co), Receivables Purchase Agreement (Dean Foods Co)

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Joint and Several. (a) Each Borrower agrees that the representations and warranties made by, and the liabilities, obligations and covenants of and applicable to, any and all of the Sellers is accepting Borrowers under this Agreement, shall be in every case (whether or not specifically so stated in each such case herein) joint and several in all circumstances; provided that the maximum liability of each Borrower hereunder and under the other Transaction Loan Documents shall in consideration no event exceed the amount which can be incurred by such Borrower under applicable laws relating to the insolvency of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) debtors. Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally Borrower accepts, as co-debtor and not merely as a surety but also as a co-debtorsurety, such joint and several liability with the other Seller, Borrowers and hereby waives any and all suretyship defenses that it might otherwise have hereunder. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation. Every notice by or to the Company shall be deemed also to constitute simultaneous notice by and performance to each other Borrower, every act or omission by any Borrower also shall be deemed an act or omission of each other Borrower and shall be binding upon each other Borrower. The Lender Parties shall be entitled to rely, and all of the Aggregate UnpaidsBorrowers agree that the Lender Parties may so rely, it on any notice given or action taken or not taken by the Company as being the intention authorized by all of the parties hereto that all Borrowers. The Issuing Bank and the Aggregate Unpaids shall be Lenders are fully authorized by each Borrower to act and rely also upon the joint representations and several obligations warranties, covenants, notices, acts and omissions of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any SellerBorrower. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, Borrower agrees that the obligations of such Seller Borrower hereunder and under the other Loan Documents shall be enforceable against such Borrower notwithstanding that this Section 14.19 shall not Agreement or any other Loan Document may be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished unenforceable in any respect against any other Borrower or rendered unenforceable by that any winding upother Borrower may have commenced bankruptcy, reorganization, arrangement, liquidation, reconstruction liquidation or similar proceeding with respect to any Seller or the Agent or any Purchaserproceedings. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 4 contracts

Samples: Credit Agreement (KKR & Co. L.P.), Credit Agreement (KKR & Co. L.P.), Credit Agreement (KKR & Co. L.P.)

Joint and Several. (a) Each The Obligations of the Sellers is accepting joint and several liability Borrowers hereunder and under the other Transaction Loan Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept are joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Sellerseveral. Without limiting the generality of the foregoing, each Seller assents to : (a) Anything herein or in any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect Loan Document to the failure by any Seller to comply with any of its respective obligationscontrary notwithstanding, it being the intention maximum liability of each Seller thatBorrower hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Borrower under applicable foreign, so long as any federal and state Laws relating to the insolvency of debtors (after giving effect to the Aggregate Unpaids hereunder remain unsatisfied, the obligations right of such Seller under this Section 14.19 shall not be discharged except by performance and then only contribution established in clause (b) below); (b) Each Borrower hereby agrees that to the extent that a Borrower shall have paid more than its proportionate share of any payment made hereunder, such Borrower shall be entitled to seek and receive contribution from and against any other Borrower hereunder which has not paid its proportionate share of such performancepayment. The obligations Each Borrower’s right of each Seller under this Section 14.19 contribution shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants subject to the Agent terms and the Purchasers that such Seller is currently informed conditions of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. clause (ec) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedybelow. The provisions of this Section 14.19 clause (b) shall in no respect limit the obligations and liabilities of any Borrower to the Administrative Agent and the Lenders, and each Borrower shall remain liable to the Administrative Agent and the Lenders for the full amount borrowed by such Borrower hereunder. (c) Notwithstanding any payment made by any Borrower hereunder or any set-off or application of funds of any Borrower by the Administrative Agent or any Lender, no Borrower shall be entitled to be subrogated to any of the rights of the Administrative Agent or any Lender against any other Borrower or any collateral security or guaranty or right of offset held by the Administrative Agent or any Lender 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 effect respect of payments made by such Borrower hereunder, until all of the Aggregate Unpaids Obligations are paid in full. If any amount shall be paid to any Borrower on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full or otherwise fully satisfied. If at any timefull, any paymentsuch amount shall be held by such Borrower in trust for the Lenders, or any part thereofsegregated from other funds of such Borrower, made in respect of any of the Aggregate Unpaidsand shall, is rescinded or must otherwise forthwith upon receipt by such Borrower, be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it turned over to the Administrative Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and exact form received by such Seller Borrower (duly indorsed by such Borrower, if required), to be applied against the Obligations, whether matured or unmatured, in such order as trustee for the Administrative Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IImay determine.

Appears in 3 contracts

Samples: Credit Agreement (Ichor Holdings, Ltd.), Credit Agreement (Ichor Holdings, Ltd.), Credit Agreement (Ichor Holdings, Ltd.)

Joint and Several. (a) Each of the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate UnpaidsUnpaids and all other obligations of the Sellers under this Agreement and the other Transaction Documents. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied, the Commitments have terminated and no Letters of Credit shall be outstanding. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash, the Commitments have terminated and no Letters of Credit shall be outstanding. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (Dean Foods Co), Receivables Purchase Agreement (Dean Foods Co), Receivables Purchase Agreement (Dean Foods Co)

Joint and Several. (a) Each of the Sellers is accepting joint Obligation and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of Reseller to Administrative Agents, and each Lender, including, without limitation, the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the SellersLoan Obligations, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be are the joint and several obligations of each Reseller, and Administrative Agents, and any Lender may proceed directly against any Reseller, or all Resellers, or any Subsidiary Guarantor, or any Guarantor, or any Collateral, or all of the Sellers foregoing, or any one of the foregoing or any combination of the foregoing, without preferences first proceeding against Resellers or distinction between them. (c) Except any Collateral, or without joining all Persons liable or potentially liable for any portion of the Loan Obligations in one action. Each Reseller shall be jointly and severally liable as otherwise expressly provided in this Agreement, each Seller hereby waives notice primary obligor and not merely as surety for repayment of acceptance of its all Loan Obligations arising under the Loan Documents. Such joint and several liability, notice liability shall apply to each Reseller regardless of whether any Advance was only requested by or on behalf of or made to any other Reseller or the proceeds of any Advance were used only by or on behalf of any other Reseller or any indemnification Obligation or any other Obligation arose only as a result of the occurrence action of any Amortization Event or Potential Amortization Event, or of other Reseller. If any demand for any Reseller makes a payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate UnpaidsLoan Obligations hereunder and under the other Loan Documents, any requirement such Reseller shall have the rights of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided contribution described in this Agreement). Each Seller hereby assents to, and waives notice of, any extension Section below against the other Reseller or postponement Resellers; provided that such Reseller shall not exercise its right of contribution until all of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any Loan Obligations are fully and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaidsindefeasibly paid and satisfied, and the takingFacility is terminated, addition, substitution and Lenders have no further obligation to extend credit to or release, in whole or in part, at any time or times, for the account of any security for any of the Aggregate Unpaids or the additionReseller; provided, substitution or releasehowever, in whole or in partthat Collateral Agent is hereby granted, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of Holders of Secured Obligations, a Lien in such right of contribution and may enforce such right during an Existing Default. It is the Agentintent of each Reseller, Administrative Agents, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Collateral Agent and the PurchasersLenders that each Reseller’s maximum obligation to repay the Loan Obligations hereunder and under the other Loan Documents shall not exceed the greater of (i) the amount actually borrowed or received directly or indirectly by such Reseller with respect thereto and (ii) the amount which is $1.00 less than the amount which, and if recorded by such Seller shall deliver any Reseller as a liability, would render such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIReseller not Solvent.

Appears in 3 contracts

Samples: Credit Agreement (Insight Enterprises Inc), Credit Agreement (Insight Enterprises Inc), Credit Agreement (Insight Enterprises Inc)

Joint and Several. (a) Each The obligations of each Borrower under this Agreement and the Sellers is accepting other Loan Documents shall be joint and several liability hereunder and under and, to the other Transaction Documents in consideration fullest extent permitted by Applicable Law, shall not be affected by (i) the failure of the financial accommodations to be provided by the Purchasers under this AgreementLender, for the mutual benefitor any of its successors or assigns, directly and indirectly, of each or Adesto Technologies Corporation Credit Agreement any holder of the Sellers and in consideration Notes or any of the undertakings Obligations to assert any claim or demand or to exercise or enforce any right, power or remedy against any other Borrower, any Guarantor or other guarantor or the Collateral or otherwise, (ii) any extension or renewal for any period (whether or not longer than the original period) or exchange of any of the Obligations or the release or compromise of any obligation of any nature of any Person with respect thereto, (iii) the surrender, release or exchange of all or any part of any property (including without limitation the Collateral) securing payment, performance and observance of any of the Obligations or the compromise or extension or renewal for any period (whether or not longer than the original period) of any obligations of any nature of any Person with respect to any such property, (iv) the invalidity or unenforceability of any of the Obligations as against any other Seller Borrower, any Guarantor, any other guarantor thereof or any other Person, and (v) any other act, matter or thing which would or might, in the absence of this provision, operate to accept joint and several liability for release, discharge or otherwise prejudicially affect the Aggregate Unpaidsobligations of Borrowers, other than the indefeasible payment in full of the Obligations. (b) Each To the fullest extent permitted by Applicable Law and except to the extent that any of the Sellersfollowing are expressly required by the provisions of any of the Loan Documents, jointly each Borrower hereby waives (i) presentment, demand for payment and severallyprotest of nonpayment of any of the Obligations, hereby irrevocably and unconditionally acceptsnotices of protest, not merely as dishonor or nonperformance, (ii) notice of any Event of Default or Default or the Lender’s inability to enforce performance of the other Borrowers’ or any Guarantor’s (or other guarantor’s) obligations to any holder of Obligations, (iii) demand for performance or observance of, and any enforcement of any provision of, or any pursuit or exhaustion of rights or remedies with respect to any security for the Obligations or against the other Borrowers or any Guarantor or other guarantor of, the Obligations pursuant to this Agreement or any other Loan Document or otherwise, and any requirements of diligence or promptness on the part of the Lender or any holder of the Obligations in connection therewith, (iv) any action or nonaction on the part of the Lender or any holder of Obligations which may impair or prejudice the rights of any Borrower, including without limitation subrogation rights or rights to obtain exoneration, contribution, indemnification or any other reimbursement or compensation from any other Borrower, any Guarantor, any other guarantor or borrowers in respect of the Obligations or any other Person, (v) failure or delay to perfect or continue the perfection of any security interest in any Collateral, (vi) any action which xxxxx or impairs the value of, or any failure to preserve or protect the value of, any Collateral, (vii) any defense based upon an election of remedies by the Lender or the holders of the Obligations, (viii) any defense based upon any statute or rule of law which provides that the obligation of a surety but also as a co-debtormust be neither larger in amount nor in other respects more burdensome than that of the principal, joint (ix) any and several liability with all demands and notices of every kind and description, including notice of the other Sellercreation of any of the Obligations, with respect to the foregoing or which may be required to be given by any statute or rule of law and (x) all defenses (other than indefeasible payment and performance of all in full) which any Borrower may now or hereafter have to the payment of the Aggregate UnpaidsObligations which could otherwise be asserted by such Borrower. In addition to the defenses referred to above which have been expressly waived hereunder, each Borrower waives all other defenses (other than indefeasible payment in full) which it being may now or hereafter have to the intention payment by it of the parties hereto that all Obligations. No delay or omission on the Aggregate Unpaids part of the Lender or any holder of any Obligation or with respect to the Collateral shall be operate as a waiver or relinquishment of such right. No action which the joint and several Lender, the holder of any Obligation, any Borrower or any Guarantor may take or refrain from taking with respect to the Obligations, including any amendments thereto or Adesto Technologies Corporation Credit Agreement modifications thereof or waivers with respect thereto, shall affect the provisions of this Agreement or the obligations of each the Borrowers hereunder. None of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice rights of the occurrence of any Amortization Event or Potential Amortization Event, Lender or of any demand for any payment under this Agreement, notice holder of any action Obligation shall at any time taken in any way be prejudiced or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default impaired by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting act or failure to act on the part of the Agent any of them or any Purchaser Borrower or any Guarantor, by any noncompliance by any Borrower with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof which the Lender or any holder of the Obligations may have or otherwise be charged with. Each Borrower hereby agrees to waive, and does hereby absolutely and irrevocably waive and relinquish, the benefit and advantage of, and does hereby covenant not to assert, any appraisement, valuation, stay, extension, redemption or similar laws, now or at any time hereafter in force, which might delay, prevent or otherwise impede the performance or enforcement of this Agreement or any other Loan Document or the Obligations. Each Borrower’s obligations under this Section 2.09 shall not be affected by the invalidity or unenforceability of any of the Obligations as against any other Borrower, any Guarantor, any other guarantor thereof or any other Person. For purposes of this Section 2.09, the Obligations shall be due and payable when and as the same shall be so due and payable under the terms of any Loan Document, notwithstanding the fact that the collection or enforcement thereof may be stayed or enjoined under the Bankruptcy Code, as from time to time in effect, or other applicable law, regulation or order. (c) To the fullest extent permitted by Applicable Law, each Borrower hereby grants to the Lender full power in its sole discretion, without notice to such Borrower, such notice being hereby expressly waived, and without in any way affecting the joint and several liability of such Borrower under this Agreement: (i) To waive compliance with, and any Event of Default or Default under, and to consent to any amendment to or modification of any term or provision of, or to give any waiver in respect of, this Agreement, any other Loan Document, the Collateral, the Obligations or any guarantee thereof (each as from time to time in effect); (ii) To grant any one or more extensions or renewals of the Obligations (for any period, no matter how long), or any total or partial release (by operation of law or otherwise), discharge, compromise or settlement with respect to the failure by obligations of any Seller to comply with Borrower or any of its respective obligations, it being the intention of each Seller that, so long as any other Person in respect of the Aggregate Unpaids hereunder remain unsatisfiedObligations, whether or not rights against the obligations of such Seller other Borrowers under this Section 14.19 shall not be discharged except by performance 2.09 are reserved in connection therewith; (iii) To take security in any form for the Obligations, and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished permitted in any security agreement to consent to (A) the addition to, (B) the substitution, exchange, surrender, release or rendered unenforceable by other disposition of, or (C) deal in any winding upother manner with, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent all or any Purchaser. (d) Each Seller represents and warrants to part of any property contained in the Agent and Collateral whether or not the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantorsproperty, if any, and of all other circumstances which bear received upon the risk exercise of nonpayment such power shall be of a character or nonperformance value the same as or different from the character or value of any property disposed of, and to obtain, modify or release any present or future guarantees of the Aggregate Unpaids. (e) Each Seller agrees that the Agent Obligations and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of an Event of Default to proceed against any Amortization of the Collateral or such guarantees in any order; Adesto Technologies Corporation Credit Agreement (iv) To, at any time after the occurrence and during the continuance of an Event of Default, collect or Potential Amortization Eventliquidate any of the Obligations or the Collateral in any manner or to refrain from collecting or liquidating any of the Obligations or the Collateral; and (v) To make the Loans under this Agreement or any other Loan Document, or otherwise, in such amount as the payment Lender may determine, even though the condition of the Borrowers (financial or otherwise on an individual or consolidated basis) may have deteriorated since the date hereof. (d) Each Borrower acknowledges and agrees that it has made such investigation as it deems desirable of the risks undertaken by such Borrower in entering into this Agreement and the other Loan Documents and is fully satisfied that it understands all such risks. Each Borrower hereby waives any obligation which may now or hereafter exist on the part of the Lender or any holder of any amounts due Obligation to inform such Person of the risks being undertaken by entering into this Agreement and the other Loan Documents or of any changes in such risks and, from and after the date hereof, each Borrower undertakes to keep itself informed of such risks and any changes therein. Further, each Borrower hereby expressly waives any duty which may now or hereafter exist on the part of the Lender or any holder of any Obligation to disclose to such Borrower any matter related to the business, operations, character, collateral, credit or condition (financial or otherwise) of any Borrower or its Affiliates or its or their properties or management, whether now or hereafter known by the Lender or any holder of any Obligation. Each Borrower represents, warrants and agrees that it assumes sole responsibility for obtaining from each other Borrower all information concerning this Agreement and all other Loan Documents and all other information as to any other Borrower and Affiliates or their properties or management or anything relating to any of the above as such Borrower deems necessary or desirable. (e) Each Borrower hereby covenants and agrees that (i) it will not enforce or otherwise exercise (except as may be necessary to preserve any such rights, but not to realize upon the same) any rights of reimbursement, subrogation, contribution or other similar rights with respect to the indebtedness Obligations against the Guarantors or any other guarantor of the Obligations or the other Borrowers, prior to the payment in full of the Obligations and the termination of the Commitments hereunder, and (ii) all debt, claims and obligations now or hereafter owing by any Seller the other Borrowers to any other Seller is such Borrower are hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after Obligations and are subordinated as a claim against the occurrence and during other Borrowers or any of their assets, whether such claim be in the continuance ordinary course of any Amortization Event business or Potential Amortization Eventin the event of voluntary or involuntary liquidation, such Seller will not demanddissolution, xxx for insolvency or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIbankruptcy.

Appears in 3 contracts

Samples: Credit Agreement (ADESTO TECHNOLOGIES Corp), Credit Agreement (ADESTO TECHNOLOGIES Corp), Credit Agreement (ADESTO TECHNOLOGIES Corp)

Joint and Several. (a) Each of the Sellers is accepting Company and CECE (each a “Borrower Loan Party”) hereby acknowledge and agree that each reference to “Borrower” in this Agreement shall be deemed a reference to each Borrower Loan Party collectively and each Borrower Loan Party hereby acknowledge and agree that it has joint and several liability hereunder on the Loans and under the other Transaction Documents in consideration of the financial accommodations to be provided on all Obligations owed by the Purchasers Borrowers under this Agreement, for the mutual benefit, directly Agreement and indirectly, of each of the Sellers that such liability is absolute and unconditional and shall not in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall any manner be the joint and several obligations of each of the Sellers without preferences affected or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted impaired by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent acts or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences omissions whatsoever by the Agent Lenders or any Purchaser in respect of any of the Aggregate UnpaidsL/C Issuer, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act Borrower Loan Parties’ joint and several liability on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 Loans and other Obligations shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable impaired by any winding upacceptance by the Lenders and L/C Issuer of any other security for or guarantors upon the Loans or any other Obligation or by any failure, reorganization, arrangement, liquidation, reconstruction neglect or similar proceeding with respect omission on the Lenders’ or L/C Issuer’s part to resort to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise Borrower Loan Parties for payment of the Loans or other Obligations or to realize upon or protect any collateral security therefor. Each Borrower Loan Party’s joint and without requirement several liability on the part Loans and other Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the AgentLoans or for what purposes such proceeds are used, and each Borrower Loan Party waives notice of borrowing requests issued by, and loans made to, other Borrower Loan Parties. Such joint and several liability of each Borrower shall also not be impaired or affected by (and each Lender and L/C Issuer, without notice to anyone, is hereby authorized to make from time to time) any Purchasers sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in, modification or disposition of any collateral security for the Loans or other Obligations or of any guaranty thereof. In order to enforce payment of the Loans and other Obligations, foreclose or otherwise realize on any collateral security therefor, and to exercise the rights granted to the Administrative Agent hereunder and thereunder and under applicable law, the Administrative Agent shall be under no obligation at any time to first resort to any collateral security, property, liens or any such successor other rights or assign first remedies whatsoever, and the Lenders and L/C Issuer shall have the right to marshal any enforce the Loans and the other Obligations irrespective of its whether or their claims not other proceedings or steps are pending seeking resort to exercise any of its or their rights against realization upon or from any of the foregoing. By its acceptance below, each Borrower Loan Party hereby expressly waives and surrenders any defense to its joint and several liability on the Loans and other Sellers or to exhaust any remedies available to it or them against Obligations based upon any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedyforegoing. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part In furtherance thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby each Borrower Loan Party agrees that wherever in this Agreement it will not enforce any is provided that a Borrower Loan Party is liable for a payment such obligation is the joint and several obligation of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller thereforeach Borrower Loan Party. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 2 contracts

Samples: Credit Agreement (Career Education Corp), Credit Agreement (Career Education Corp)

Joint and Several. (a) Each Borrower is part of a group of affiliated Persons, and each Borrower expects to receive substantial direct and indirect benefits from the extension of the Sellers credit facility established pursuant to this Agreement. In consideration of the foregoing, each Borrower hereby irrevocably and unconditionally agrees that it is accepting joint jointly and several liability severally liable for all of the liabilities, obligations, covenants and agreements of the Borrowers hereunder and under the other Transaction Documents in consideration Loan Documents, whether now or hereafter existing or due or to become due. The obligations of the financial accommodations to Borrowers under the Loan Documents may be provided enforced by the Purchasers Agent and the Lenders against any Borrower or all Borrowers in any manner or order selected by the Agent or the Required Lenders in their sole discretion. Each Borrower hereby irrevocably waives (i) any rights of subrogation and (ii) any rights of contribution, indemnity or reimbursement, in each case, that it may acquire or that may arise against any other Borrower due to any payment or performance made under this Agreement, for in each case until all Obligations shall have been fully satisfied. Without limiting the mutual benefitforegoing provisions of this Section 9.23, directly each Borrower acknowledges and indirectly, agrees that: (a) its obligations under this Agreement shall remain enforceable against it even though such obligations may be unenforceable or not allowable against any other Borrower due to the existence of each of the Sellers and in consideration of the undertakings of the an insolvency proceeding involving any other Seller to accept joint and several liability for the Aggregate Unpaids.Borrower; (b) Each its obligations under this Agreement are independent of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each any other Borrower, and a separate action or actions may be brought and prosecuted against it in respect of the Sellers without preferences such obligations irrespective of whether any action is brought against any other Borrower or distinction between them.any other Borrower is joined in any such action or actions; (c) Except as otherwise expressly provided it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following: (i) any lack of validity or enforceability of this Agreement, each Seller hereby waives notice any other Loan Document or any agreement or instrument relating hereto or thereto in respect of acceptance any other Borrower; (ii) any change in the time, manner or place of its joint and several liabilitypayment of, notice or in any other term of, all or any of the occurrence obligations of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser other Borrower under or in respect of this Agreement, the Aggregate Unpaidsother Loan Documents, or any requirement other amendment or waiver of diligence or any consent to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with departure from this Agreement or any other Loan Document, in respect of any other Borrower; (except as iii) any change, restructuring or termination of the structure or existence of any other Borrower; (iv) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other Person with respect to any obligations of the Borrowers under this Agreement or any other Loan Document; (v) any other circumstance (including any statute of limitations but other than the Obligations having been fully satisfied) or any existence of or reliance on any representation by any other Person that might otherwise provided in this Agreement). Each Seller hereby assents constitute a defense available to, and waives notice or a discharge of, any other Borrower; or (vi) the application of any Loan proceeds to, or the extension or postponement of the time any other credit for the payment of benefit of, any other Borrower, any other Credit Party, or any of their Subsidiaries; (d) its obligations under this Agreement and the Aggregate Unpaidsother Loan Documents shall continue to be effective or be reinstated, as the acceptance of case may be, if at any time any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the such obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser Person upon the insolvency, bankruptcy or reorganization of any of the Sellersother Borrower, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, all as though such payment had not been made.; and (ge) Each Seller it hereby agrees unconditionally and irrevocably waives any right to revoke its joint and several liability under the Loan Documents and acknowledges that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect such liability is continuing in nature and applies to any liability incurred by it hereunder or under any all obligations of the other Transaction Borrowers under the Loan Documents, any payments made by it to the Agent whether existing now or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller thereforfuture. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 2 contracts

Samples: Credit Agreement (Talbots Inc), Credit Agreement (Talbots Inc)

Joint and Several. (a) Each Borrower hereby unconditionally and irrevocably agrees it is jointly and severally liable to the Administrative Agent, the Issuing Banks, the Lenders and the other Secured Parties for the Secured Obligations. In furtherance thereof, each Borrower agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment, such obligation is the joint and several obligation of each Borrower. Each Borrower acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by the Administrative Agent, any Issuing Bank, any Lender, any Secured Party or any other Person. Each Borrower’s liability for the Secured Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the Sellers is accepting credit extended hereunder or for what purposes such proceeds are used, and each Borrower waives notice of borrowing requests issued by, and loans or other extensions of credit made to, other Borrowers. Each Borrower hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Borrower against any party liable for payment under this Agreement and the Loan Documents unless and until the Administrative Agent, each Issuing Bank, each Lender and each other Secured Party have been paid in full and all of the Secured Obligations are satisfied and discharged following termination or expiration of all commitments of the Lenders to extend credit to the Borrowers. Each Borrower’s joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generallySecured Obligations shall, to the fullest extent permitted by applicable law, all demandsbe the unconditional liability of such Borrower irrespective of (i) the validity, notices and other formalities enforceability, avoidance or subordination of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for Secured Obligations or of any other document evidencing all or any part of the Secured Obligations, (ii) the absence of any attempt to collect any of the Secured Obligations from any other Obligor or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender with respect to any provision of any instrument executed by any other Obligor evidencing or securing the payment of any of the Aggregate UnpaidsSecured Obligations, or any other agreement now or hereafter executed by any other Obligor and delivered to the acceptance Administrative Agent, (iv) the failure by the Administrative Agent or any Lender to take any steps to perfect or maintain the perfected status of its Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Aggregate Unpaids, Secured Obligations or the acceptance Administrative Agent’s release of any partial payment thereonCollateral or of its Liens upon any Collateral, any waiver, consent (v) the release or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or releasecompromise, in whole or in part, of any Seller. Without limiting the generality liability of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made Obligor for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder Secured Obligations, (vi) any increase in the amount of the Secured Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, in each case, if consented to elect by any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereofdecrease in the same, made in respect or (vii) any other circumstance that might constitute a legal or equitable discharge or defense of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cashObligor. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after After the occurrence and during the continuance of any Amortization Event or Potential Amortization Eventof Default, the Administrative Agent may proceed directly and at once, without notice to any Borrower, against any or all of Obligors to collect and recover all or any part of the Secured Obligations, without first proceeding against any other Obligor or against any Collateral or other security for the payment or performance of any of the Secured Obligations, and each Borrower waives any provision that might otherwise require the Administrative Agent or the Lenders under applicable law to pursue or exhaust remedies against any Collateral or other Obligor before pursuing such Borrower or its property. Each Borrower consents and agrees that neither the Administrative Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Obligor or against or in payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash or all of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IISecured Obligations.

Appears in 2 contracts

Samples: Credit Agreement (Kodiak Gas Services, Inc.), Credit Agreement (Kodiak Gas Services, Inc.)

Joint and Several. (a) Each Borrower hereby unconditionally and irrevocably agrees it is jointly and severally liable to Lender for the Secured Obligations. In furtherance thereof, each Borrower agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment such obligation is the joint and several obligation of each Borrower. Each Borrower acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by Lender or any other Person. Each Borrower’s liability for the Secured Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the Sellers is accepting credit extended hereunder or for what purposes such proceeds are used, and each Borrower waives notice of borrowing requests issued by, and loans or other extensions of credit made to, other Borrower. Each Borrower hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Borrower against any party liable for payment under this Agreement and the Loan Documents unless and until Lender has been paid in full and all of the Secured Obligations are satisfied and discharged following termination or expiration of all commitments of Lender to extend credit to Borrower. Each Borrower’s joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generallySecured Obligations shall, to the fullest extent permitted by applicable law, all demandsbe the unconditional liability of such Borrower irrespective of (i) the validity, notices and other formalities enforceability, avoidance or subordination of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for Secured Obligations or of any other document evidencing all or any part of the Secured Obligations, (ii) the absence of any attempt to collect any of the Secured Obligations from any other Loan Party or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any indulgence by Lender with respect to any provision of any instrument executed by any other Loan Party evidencing or securing the payment of any of the Aggregate UnpaidsSecured Obligations, or any other agreement now or hereafter executed by any other Loan Party and delivered to Lender, (iv) the acceptance failure by Lender to take any steps to perfect or maintain the perfected status of its Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Aggregate Unpaids, the acceptance Secured Obligations or Lender’s release of any partial payment thereonCollateral or of its Liens upon any Collateral, any waiver, consent (v) the release or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or releasecompromise, in whole or in part, of any Seller. Without limiting the generality liability of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made Loan Party for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder Secured Obligations, (vi) any increase in the amount of the Secured Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, in each case, if consented to elect by any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereofdecrease in the same, made in respect or (vii) any other circumstance that might constitute a legal or equitable discharge or defense of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cashLoan Party. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after After the occurrence and during the continuance of any Amortization Event of Default, Lender may proceed directly and at once, without notice to any Borrower, against any or Potential Amortization Eventall of Loan Parties to collect and recover all or any part of the Secured Obligations, without first proceeding against any other Loan Party or against any Collateral or other security for the payment or performance of any of the Secured Obligations, and each Borrower waives any provision that might otherwise require Lender under applicable law to pursue or exhaust its remedies against any Collateral or other Loan Party before pursuing such Borrower or its property. Each Borrower consents and agrees that Lender shall be under no obligation to marshal any assets in favor of any Loan Party or against or in payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash or all of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IISecured Obligations.

Appears in 2 contracts

Samples: Credit and Security Agreement (Hudson Executive Investment Corp.), Credit and Security Agreement (Hudson Executive Investment Corp.)

Joint and Several. (a) Each of the Sellers is accepting Borrowers (each a “Borrower Loan Party”) hereby acknowledges and agrees that each reference to “Borrower” in this Agreement shall be deemed a reference to each Borrower Loan Party collectively and each Borrower Loan Party hereby acknowledges and agrees that it has joint and several liability hereunder on the Loans, Notes, Reimbursement Obligations and under the other Transaction Documents in consideration of the financial accommodations to be provided on all obligations owed by the Purchasers Borrowers under this Agreement, for the mutual benefit, directly Agreement and indirectly, of each of the Sellers that such liability is absolute and unconditional and shall not in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall any manner be the joint and several obligations of each of the Sellers without preferences affected or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted impaired by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent acts or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences omissions whatsoever by the Agent or any Purchaser in respect of any of the Aggregate UnpaidsLenders, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act Borrower Loan Party’s joint and several liability on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligationsLoans, it being the intention of each Seller thatNotes, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller Reimbursement Obligations and under this Section 14.19 Agreement shall not be discharged except impaired by performance and then only to any acceptance by the extent Lenders of such performance. The any other security for or guarantors upon the Loans, Notes, Reimbursement Obligations or any obligations of each Seller under this Section 14.19 shall not be diminished Agreement or rendered unenforceable by any winding upfailure, reorganization, arrangement, liquidation, reconstruction neglect or similar proceeding with respect omission on the Lenders’ part to resort to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise Borrower Loan Parties for payment of the Loans, Notes, Reimbursement Obligations or the obligations under this Agreement or to realize upon or protect any collateral security therefor. Each Borrower Loan Party’s joint and without requirement several liability on the part Loans, Notes, Reimbursement Obligations and under this Agreement shall not in any manner be impaired or affected by who receives or uses the proceeds of the AgentLoans, Reimbursement Obligations or for what purposes such proceeds are used, and each Borrower Loan Party waives notice of borrowing requests issued by, and loans made to, other Borrower Loan Parties. Such joint and several liability of each Borrower shall also not be impaired or affected by (and each Lender, without notice to anyone, is hereby authorized to make from time to time) any Purchasers sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in, modification or disposition of any collateral security for the Loans, Notes, Reimbursement Obligations or the obligations under this Agreement or of any guaranty thereof. In order to enforce payment of the Loans, Notes, Reimbursement Obligations and the Borrower Loan Parties’ obligations under this Agreement, foreclose or otherwise realize on any collateral security therefor, and to exercise the rights granted to the Administrative Agent hereunder and thereunder and under applicable law, the Administrative Agent shall be under no obligation at any time to first resort to any collateral security, property, liens or any such successor other rights or assign first remedies whatsoever, and the Lenders shall have the right to marshal any enforce the Loans, Notes, Reimbursement Obligations and the Borrower Loan Parties’ obligations under this Agreement irrespective of its whether or their claims not other proceedings or steps are pending seeking resort to exercise any of its or their rights against realization upon or from any of the other Sellers foregoing. By its acceptance below, each Borrower Loan Party hereby expressly waives and surrenders any defense to its joint and several liability on the Loans, Notes or to exhaust any remedies available to it or them against Reimbursement Obligations under this Agreement based upon any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedyforegoing. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part In furtherance thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby each Borrower Loan Party agrees that wherever in this Agreement it will not enforce any is provided that a Borrower Loan Party is liable for a payment such obligation is the joint and several obligation of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller thereforeach Borrower Loan Party. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 2 contracts

Samples: Amendment Agreement (Boulder Brands, Inc.), Credit Agreement (Boulder Brands, Inc.)

Joint and Several. (a) Each Borrower hereby unconditionally and irrevocably agrees it is jointly and severally liable to the Lender for the Secured Obligations. In furtherance thereof, each Borrower agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment, such obligation is the joint and several obligation of each Borrower. Each Borrower acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by the Lender or any other Person. Each Borrower’s liability for the Secured Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the Sellers is accepting credit extended hereunder or for what purposes such proceeds are used, and each Borrower waives notice of borrowing requests issued by, and loans or other extensions of credit made to, other Borrowers. Each Borrower hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Borrower against any party liable for payment under this Agreement and the Loan Documents unless and until the Lender has been paid in full and all of the Secured Obligations are satisfied and discharged following termination or expiration of all commitments of the Lender to extend credit to the Borrowers. Each Borrower’s joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generallySecured Obligations shall, to the fullest extent permitted by applicable law, all demandsbe the unconditional liability of such Borrower irrespective of (i) the validity, notices and other formalities enforceability, avoidance or subordination of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for Secured Obligations or of any other document evidencing all or any part of the Secured Obligations, (ii) the absence of any attempt to collect any of the Secured Obligations from any other Loan Party or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any indulgence by the Lender with respect to any provision of any instrument executed by any other Loan Party evidencing or securing the payment of any of the Aggregate UnpaidsSecured Obligations, or any other agreement now or hereafter executed by any other Loan Party and delivered to the acceptance Lender, (iv) the failure by the Lender to take any steps to perfect or maintain the perfected status of its Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Aggregate Unpaids, Secured Obligations or the acceptance Lender’s release of any partial payment thereonCollateral or of its Liens upon any Collateral, any waiver, consent (v) the release or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or releasecompromise, in whole or in part, of any Seller. Without limiting the generality liability of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made Loan Party for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder Secured Obligations, (vi) any increase in the amount of the Secured Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, in each case, if consented to elect by any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereofdecrease in the same, made in respect or (vii) any other circumstance that might constitute a legal or equitable discharge or defense of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cashLoan Party. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after After the occurrence and during the continuance of any Amortization Event or Potential Amortization Eventof Default, the Lender may proceed directly and at once, without notice to any Borrower, against any or all of Loan Parties to collect and recover all or any part of the Secured Obligations, without first proceeding against any other Loan Party or against any Collateral or other security for the payment or performance of any of the Secured Obligations, and each Borrower waives any provision that might otherwise require the Lender under applicable law to pursue or exhaust its remedies against any Collateral or other Loan Party before pursuing such Borrower or its property. Each Borrower consents and agrees that the Lender shall be under no obligation to marshal any assets in favor of any Loan Party or against or in payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash or all of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IISecured Obligations.

Appears in 2 contracts

Samples: Export Credit Agreement (Sifco Industries Inc), Credit Agreement (Sifco Industries Inc)

Joint and Several. (a) Each of the Sellers is accepting Borrowers hereby acknowledges and agrees that it has joint and several liability hereunder on all Obligations (except for its Excluded Swap Obligations) owed by the Borrowers under this Agreement and under the other Transaction Loan Documents and that such liability is absolute and unconditional and shall not in consideration of the financial accommodations to any manner be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences affected or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default impaired by any Seller in the performance acts or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences omissions whatsoever by the Agent Administrative Agent, the L/C Issuers or any Purchaser in respect of any of the Aggregate UnpaidsLender, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act of the Borrowers’ joint and several liability on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller Obligations under this Section 14.19 Agreement and the other Loan Documents shall not be discharged except impaired by performance and then only to any acceptance by the extent Administrative Agent, any L/C Issuer or any Lender of such performance. The obligations of each Seller any other security for or guarantors upon the Obligations under this Section 14.19 shall not be diminished Agreement or rendered unenforceable any other Loan Document or by any winding upfailure, reorganizationneglect or omission on the Administrative Agent’s, arrangement, liquidation, reconstruction any L/C Issuer’s or similar proceeding with respect any Lender’s part to resort to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part 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 of the Borrowers’ 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 the Letters of Credit, or for what purposes such proceeds are used, and each of the Borrowers waives notice of requests for extensions of credit issued by, and the Loans and Letters of Credit made to or for the account of, any other Borrower. Each of the Borrowers hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse, or subrogation available to any such Borrower for payment under this Agreement or any other Loan Document against any party liable therefor unless and until Payment in Full shall have occurred (it being agreed the foregoing does not restrict reimbursement of expenses between the Borrowers in the ordinary course of business). Such joint and several liability of each of the Borrowers shall also not be impaired or affected by (and each Lender, each L/C Issuer and the Administrative Agent, without notice to anyone, is hereby authorized to make from time to time) any Purchasers 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 such successor other Loan Document or assign first of any guaranty thereof. In order to marshal enforce payment of the Obligations under this Agreement and the other Loan Documents, foreclose or otherwise realize on any of its or their claims or collateral security therefor, and to exercise the rights granted to the Lenders, the L/C Issuers and/or the Administrative Agent hereunder and thereunder and under applicable law, no Lender, L/C Issuer or 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 the Lenders, the L/C Issuers and/or the Administrative Agent shall have the right to enforce the Obligations under this Agreement and the other Loan Documents irrespective of its whether or their rights against not other proceedings or steps are pending seeking resort to or realization upon or from any of the foregoing. Each of the Borrowers hereby expressly waives and surrenders any defense to its joint and several liability on the Obligations under this Agreement or any other Sellers or to exhaust any remedies available to it or them against Loan Document based upon any of the other Sellers or to resort to any other source or means of obtaining payment of any foregoing. In furtherance thereof, each of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions Borrowers agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment such obligation is the joint and several obligation of this Section 14.19 shall remain in effect until all each of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfiedBorrowers. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby Loan Parties acknowledges and agrees thatthat (i) upon the Restatement Closing Date, each of the Existing Borrowers (other than Parent) shall cease to be Borrowers and shall instead be Guarantors and (ii) Parent shall remain liable as Borrower, and the Existing Borrowers (other than Parent) shall remain liable as Guarantors, for the Obligations, including without limitation, the Obligations created under the Existing Credit Agreement (which shall continue but which shall be governed by the terms of this Agreement on and after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIRestatement Closing Date).

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (Sparton Corp), Credit and Guaranty Agreement (Sparton Corp)

Joint and Several. (a) Each of the Sellers is accepting joint obligation and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect Borrower to the payment and performance of all of Credit Parties, including, without limitation, the Aggregate UnpaidsObligations, it being the intention of the parties hereto that all the Aggregate Unpaids shall be are the joint and several obligations of each Borrower, and the Credit Parties may proceed directly against any Borrower, or all Borrowers, or any Guarantor, or any Collateral, or all of the Sellers foregoing, or any one of the foregoing or any combination of the foregoing, without preferences first proceeding against Borrower or distinction between them. (c) Except any Collateral, or without joining all Persons liable or potentially liable for any portion of the Obligations in one action. Each Borrower shall be jointly and severally liable as otherwise expressly provided in this Agreement, each Seller hereby waives notice primary obligor and not merely as surety for repayment of acceptance of its all Obligations arising under the Loan Documents. Such joint and several liability, notice liability shall apply to each Borrower regardless of whether any Loan was only requested by or on behalf of or made to any other Borrower or the proceeds of any Loan were used only by or on behalf of any other Borrower or any indemnification obligation or any other obligation arose only as a result of the occurrence action of any Amortization Event or Potential Amortization Event, or of other Borrower. If any demand for any Borrower makes a payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate UnpaidsObligations hereunder and under the other Loan Documents, any requirement it shall have the rights of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided contribution described in this Agreement). Each Seller hereby assents to, Section below and waives notice of, any extension under applicable common law against the other Borrower or postponement Borrowers; provided that such Borrower shall not exercise its right of contribution until all of the time for the payment of any of the Aggregate UnpaidsObligations are Paid in Full; provided, the acceptance of any payment of any of the Aggregate Unpaidshowever, the acceptance of any partial payment thereonthat Agent, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the AgentCredit Parties, the Purchasers and their respective successors and assigns, is hereby granted a Lien in such right of contribution and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any enforce such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser right upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of Event of Default. It is the intent of each Borrower and Lender that each Borrower’s maximum obligation to repay the Obligations hereunder and under the other Loan Documents (the “Loan Obligation Limit”) shall not exceed the greater of (i) the amount actually borrowed or received directly or indirectly by such Borrower with respect thereto and (ii) the amount which is $1.00 less than the amount which, if recorded by such Borrower as a liability, would render such Borrower not Solvent. To the extent that any Amortization Event or Potential Amortization EventBorrower makes a payment on any of the Obligations (a “Loan Obligation Payment”), such Borrower (the payment “Entitled Borrower”) is entitled to contribution and indemnification from, and reimbursement by, each other Borrower (a “Contributing Borrower”) in the amount of any amounts due the Contribution Obligation of such Contributing Borrower hereunder. The “Contribution Obligation” of a Contributing Borrower with respect to the indebtedness owing by any Seller to any other Seller Loan Obligation Payment of an Entitled Borrower is hereby subordinated an amount equal to the prior payment in full in cash greater of (1) the lesser of (x) such Contributing Borrower’s Loan Obligation Limit at the time the Loan Obligation Payment is made and (y) such Contributing Borrower’s Allocable Share of the Aggregate Unpaids. Each Seller hereby agrees that after Loan Obligation Payment, and (2) the occurrence and during amount of all proceeds from the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and Obligations actually received by such Seller as trustee Contributing Borrower or applied by the recipient thereof directly or indirectly for the Agent benefit of such Contributing Borrower, less the sum of any repayments thereof and any Loan Obligation Payments made by such Contributing Borrower prior to the time the applicable Loan Obligation Payment is made. The “Allocable Share” of a Contributing Borrower is a fraction, the numerator of which is such Contributing Borrower’s Loan Obligation Limit at the time the applicable Loan Obligation Payment is made and the Purchasers, and denominator of which is the sum of the Loan Obligation Limits of all of the Contributing Borrowers (plus a similarly computed amount for any Guarantor which has a similar obligation to make a contribution) as of such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IItime.

Appears in 2 contracts

Samples: Second Lien Credit and Security Agreement (Katy Industries Inc), Second Lien Credit and Security Agreement (Katy Industries Inc)

Joint and Several. (a) Each of the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate UnpaidsUnpaids and all other obligations of the Sellers under this Agreement and the other Transaction Documents. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable lawApplicable Law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied, the Commitments have terminated and no Letters of Credit shall be outstanding. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash, the Commitments have terminated and no Letters of Credit shall be outstanding. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Dean Foods Co), Receivables Purchase Agreement (Dean Foods Co)

Joint and Several. (a) Each Obligation and liability of Reseller and each Guarantor to Administrative Agents, Letter of Credit Issuer, and each Lender, including the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this AgreementLoan Obligations, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be are the joint and several obligations of Reseller and each Guarantor, and Administrative Agents, Letter of Credit Issuer, and any Lender may proceed directly against Reseller, Guarantors, any Collateral, or all of the Sellers without preferences foregoing, or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice any one of the occurrence foregoing or any combination of the foregoing, without first proceeding against Reseller, any Amortization Event Guarantor or Potential Amortization Eventany Collateral, or of any demand without joining all Persons liable or potentially liable for any payment portion of the Loan Obligations in one action. Reseller and each Guarantor shall be jointly and severally liable as primary obligor and not merely as surety for repayment of all Loan Obligations arising under this Agreement, notice of any action at any time taken or omitted by the Agent Loan Documents. If Reseller or any Purchaser under or Guarantor makes a payment in respect of the Aggregate UnpaidsLoan Obligations hereunder and under the other Loan Documents, Reseller or such Guarantor shall have the rights of contribution described in this Section below against Reseller or other Guarantors; provided that Reseller or such Guarantor shall not exercise its right of contribution until all of the Loan Obligations are fully and indefeasibly paid and satisfied, and the Facilities are terminated, no Letters of Credit are outstanding and the Letter of Credit Exposure is zero and Lenders have no further obligation to extend credit to or for the account of any requirement Reseller; provided, however, that Collateral Agent is hereby granted, for the benefit of diligence Lenders, a Security Interest in such right of contribution and may enforce such right during an Existing Default. It is the intent of Reseller, Guarantors, Administrative Agents, Letter of Credit Issuer and Lenders that Reseller’s and Guarantors’ maximum obligation to repay the Loan Obligations hereunder and under the other Loan Documents (the Loan Obligation Limit) shall not exceed the greater of (a) the amount actually borrowed or to mitigate damages andreceived directly or indirectly by Reseller with respect thereto and (b) the amount which is $1.00 less than the amount which, generallyif recorded by Reseller or such Guarantor as a liability, to would render Reseller or such Guarantor not Solvent. To the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, that Reseller or any extension or postponement of the time for the Guarantor makes a payment of on any of the Aggregate UnpaidsLoan Obligations (a “Loan Obligation Payment”), Reseller or such Guarantor (the acceptance of any payment of any “Entitled Obligor”) is entitled to contribution and indemnification from, and reimbursement by, each other Reseller (a “Contributing Obligor”) in the amount of the Aggregate Unpaids, the acceptance Contribution Obligation of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect such Contributing Obligor hereunder. The “Contribution Obligation” of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser a Contributing Obligor with respect to the failure by any Seller Loan Obligation Payment of an Entitled Obligor is an amount equal to comply with any the greater of its respective obligations, it being (a) the intention lesser of each Seller that, so long as any (i) such Contributing Obligor’s Loan Obligation Limit at the time the Loan Obligation Payment is made and (ii) such Contributing Obligor’s Allocable Share of the Aggregate Unpaids hereunder remain unsatisfiedLoan Obligation Payment, and (b) the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and amount of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably proceeds from the Receivables owned Loan Obligations actually received by any of such Contributing Obligor or applied by the Sellers. (f) The provisions of this Section 14.19 are made recipient thereof directly or indirectly for the benefit of such Contributing Obligor, less the Agentsum of any repayments thereof and any Loan Obligation Payments made by such Contributing Obligor prior to the time the applicable Loan Obligation Payment is made. The “Allocable Share” of a Contributing Obligor is a fraction, the Purchasers numerator of which is such Contributing Obligor’s Loan Obligation Limit at the time the applicable Loan Obligation Payment is made and their respective successors and assigns, and may be enforced by it or them from time to time against any or the denominator of which is the sum of the Loan Obligation Limits of all of the Sellers Contributing Obligor (plus a similarly computed amount for any Guarantor which has a similar obligation to make a contribution) as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IItime.

Appears in 2 contracts

Samples: Credit Agreement (Gtsi Corp), Credit Agreement (Gtsi Corp)

Joint and Several. (a) Each Borrower acknowledges that it is jointly and severally liable for all of the Sellers is accepting joint and several liability hereunder and Obligations under the other Transaction Documents in consideration Loan Documents. Each Borrower expressly understands, agrees and acknowledges that (i) Borrowers are all Affiliated entities by common ownership, (ii) each Borrower desires to have the availability of one common credit facility instead of separate credit facilities, (iii) each Borrower has requested that Lenders extend such a common credit facility on the terms herein provided, (iv) Lenders will be lending against, and relying on a Lien upon, all of Borrowers’ assets even though the proceeds of the financial accommodations Loan made hereunder may not be advanced directly to be provided a particular Borrower, (v) each Borrower will nonetheless benefit by the Purchasers under this Agreementmaking of such Loan by Lenders and the availability of a single credit facility of a size greater than each could independently warrant, for the mutual benefit, directly and indirectly, of each (vi) all of the Sellers representations, warranties, covenants, obligations, conditions, agreements and other terms contained in consideration of the undertakings of Loan Documents shall be applicable to and shall be binding upon each Borrower and (vii) each Borrower has executed or will execute the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also Note as a co-debtor, joint maker of the Note and several liability with that it would not be able to obtain the credit provided by Lenders hereunder without the financial support provided by the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement)Borrowers. Each Seller Borrower hereby assents to, absolutely and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents unconditionally guarantees to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers Lenders and their respective successors and assigns, the full and may prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Lenders by each other Borrower. Except as set forth in Section 2.13, each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 7.24 shall not be enforced discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 7.24 shall be absolute and unconditional. (b) If (i) any court holds that Borrowers are guarantors and not jointly and severally liable as principal obligors or (ii) Bankruptcy Proceedings are instituted by it or them from time to time against any or all Borrower, then each Borrower hereby: (A) expressly and irrevocably waives, to the fullest extent possible, on behalf of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agentsuch Borrower, any Purchasers and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, set off or any such successor other rights that could accrue to a surety against a principal, to a guarantor against a maker or assign first obligor, to marshal any of its an accommodation party against the party accommodated, to a holder or their claims transferee against a maker, or to exercise the holder of a claim against any Person, and which such Borrower may have or hereafter acquire against any Person in connection with or as a result of its such Borrower’s execution, delivery and/or performance of this Agreement, or their any other documents to which such Borrower is a party or otherwise; (B) expressly and irrevocably waives any “claim” (as such term is defined in the Bankruptcy Code) of any kind against any other Borrower, and further agrees that it shall not have or assert any such rights against any Person (including any surety), either directly or as an attempted set off to any action commenced against such Borrower by Lender or any other Person; and (C) acknowledges and agrees (I) that this waiver is intended to benefit Lender and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Agreement, and (II) that Lender and its successors and assigns are intended beneficiaries of this waiver, and the agreements set forth in this Section 7.24 and their rights under this Section 7.24 shall survive payment in full of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been madeObligations. (gc) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction DocumentsEACH BORROWER WAIVES THE FILING OF A CLAIM WITH A COURT IN THE EVENT OF RECEIVERSHIP OR BANKRUPTCY OF ANY BORROWER, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cashAND WAIVES EVERY DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH ANY BORROWER MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY LENDER IN ENFORCING THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, EVERY DEFENSE, COUNTERCLAIM OR SETOFF WHICH SUCH BORROWER MAY NOW HAVE, OR HEREAFTER MAY HAVE, AGAINST ANOTHER BORROWER OR ANY OTHER PARTY LIABLE AS LENDER IN ANY MANNER. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of paymentAS FURTHER SECURITY, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunderANY AND ALL DEBTS AND LIABILITIES NOW OR HEREAFTER ARISING AND OWING TO ANY BORROWER BY ANY OTHER BORROWER, to the prior payment in full in cash of the Aggregate Unpaids andOR TO ANY OTHER PARTY LIABLE TO LENDER, in the event of any insolvencyARE HEREBY SUBORDINATED TO LENDER’S CLAIMS AND UPON THE OCCURRENCE OF AN EVENT OF DEFAULT ARE ASSIGNED TO LENDER. EACH BORROWER RATIFIES AND CONFIRMS WHATEVER LENDER MAY DO PURSUANT TO THE TERMS HEREOF, bankruptcyAND AGREES THAT LENDER SHALL NOT BE LIABLE FOR ANY ERROR IN JUDGMENT OR MISTAKES OF FACT OR LAW. EACH BORROWER HEREBY AGREES THAT IT MAY BE JOINED AS A PARTY DEFENDANT IN ANY LEGAL PROCEEDING (INCLUDING, receivershipBUT NOT LIMITED TO, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller thereforA FORECLOSURE PROCEEDING) INSTITUTED BY LENDER AGAINST ANY OTHER BORROWER. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 2 contracts

Samples: Loan Agreement (Red Lion Hotels CORP), Loan Agreement (Red Lion Hotels CORP)

Joint and Several. (a) Each of the Sellers is accepting joint and several liability the Buyer hereby acknowledges and agrees that the Original Sellers are each jointly and severally liable to the Buyer for all of their and the Additional Sellers’ respective representations, warranties and covenants hereunder and under this Agreement. The Original Sellers hereby unconditionally and irrevocably guarantee to the other Transaction Documents in consideration Buyer the prompt and complete payment and performance by the Additional Sellers when due (whether at the stated maturity, by acceleration or otherwise) of their Obligations hereunder. Each Original Seller waives any and all notice of the financial accommodations to be provided creation, renewal, extension or accrual of any of the Additional Sellers’ Obligations hereunder and notice of or proof of reliance by the Purchasers under Buyer upon this Agreementguaranty or acceptance of this guaranty; the Additional Sellers’ Obligations, for and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this guaranty; and all dealings between the mutual benefit, directly and indirectly, of each of Original Sellers or the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Additional Sellers, jointly on the one hand, and severallythe Buyer, hereby irrevocably on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this guaranty. Each Original Seller waives diligence, presentment, protest, demand for payment and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with notice of default or nonpayment to or upon the other Seller, Additional Sellers or this guaranty with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids Additional Sellers’ Obligations. This guaranty shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (i) the joint and several obligations of each of the Sellers without preferences validity or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision enforceability of this Agreement, any and all the other indulgences whatsoever by the Agent or any Purchaser in respect of Program Agreements, any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Additional Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids ’ Obligations or any collateral security therefor until such or guarantee or right of offset with respect thereto at any time as all or from time to time held by the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Additional Sellers against the Buyer, or (iii) any other circumstance whatsoever (with or without notice to or knowledge of the Aggregate Unpaids have been paid Additional Sellers or the Original Sellers) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Additional Sellers for their Obligations, or of the Original Sellers under this guaranty, in full bankruptcy or in cashany other instance. Any claim which any Seller When pursuing its rights and remedies hereunder against the Original Sellers, the Buyer may, but shall be under no obligation, to pursue such rights and remedies that they may have against the Additional Sellers or any other Seller Person or against any collateral security or guarantee for the Additional Sellers’ Obligations or any right of offset with respect thereto, and any failure by the Buyer to pursue such other rights or remedies or to collect any payments from the Additional Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Original Sellers or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve the Original Sellers of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Original Sellers. This guaranty shall remain in full force and effect and be binding in accordance with and to the Agent extent of its terms upon the Original Sellers and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all of each Additional Seller’s Obligations and the obligations of each Original Seller under this guaranty and this Agreement shall have been satisfied by payment in full, notwithstanding that from time to time during the term of this Agreement, the Additional Sellers may be free from any Obligations. Notwithstanding anything contained herein, in this Agreement or in any Purchaser hereunder other document related thereto, each of the Additional Sellers shall be liable solely for such Additional Seller’s individual and direct obligations as a Seller hereunder, under this Agreement and under any other document related thereto, and no recourse shall be had against such Additional Seller, individually or personally, as a guarantor, surety or joint obligor, whether by levy or execution, or under any law, or by the enforcement of any assessment or penalty or otherwise, for the payment or performance of any other Seller’s obligations hereunder, under this Agreement or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefordocument related thereto. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 2 contracts

Samples: Master Repurchase Agreement, Master Repurchase Agreement (New Century Financial Corp)

Joint and Several. (a) Each Borrower hereby unconditionally and irrevocably agrees it is jointly and severally liable to the Administrative Agent, the Issuing Banks and the Lenders for the Secured Obligations. In furtherance thereof, each Borrower agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment, such obligation is the joint and several obligation of each Borrower. Each Borrower acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by the Administrative Agent, any Issuing Bank, any Lender or any other Person. Each Borrower’s liability for the Secured Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the Sellers is accepting credit extended hereunder or for what purposes such proceeds are used, and each Borrower waives notice of borrowing requests issued by, and loans or other extensions of credit made to, other Borrowers. Each Borrower hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Borrower against any party liable for payment under this Agreement and the Loan Documents unless and until the Administrative Agent, each Issuing Bank and each Lender have been paid in full and all of the Secured Obligations are satisfied and discharged following termination or expiration of all commitments of the Lenders to extend credit to the Borrowers. Each Borrower’s joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generallySecured Obligations shall, to the fullest extent permitted by applicable law, all demandsbe the unconditional liability of such Borrower irrespective of (i) the validity, notices and other formalities enforceability, avoidance or subordination of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for Secured Obligations or of any other document evidencing all or any part of the Secured Obligations, (ii) the absence of any attempt to collect any of the Secured Obligations from any other Loan Party or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender with respect to any provision of any instrument executed by any other Loan Party evidencing or securing the payment of any of the Aggregate UnpaidsSecured Obligations, or any other agreement now or hereafter executed by any other Loan Party and delivered to the acceptance Administrative Agent, (iv) the failure by the Administrative Agent or any Lender to take any steps to perfect or maintain the perfected status of its Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Aggregate Unpaids, Secured Obligations or the acceptance Administrative Agent’s release of any partial payment thereonCollateral or of its Liens upon any Collateral, any waiver, consent (v) the release or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or releasecompromise, in whole or in part, of any Seller. Without limiting the generality liability of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made Loan Party for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder Secured Obligations, (vi) any increase in the amount of the Secured Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, in each case, if consented to elect by any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereofdecrease in the same, made in respect or (vii) any other circumstance that might constitute a legal or equitable discharge or defense of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cashLoan Party. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after After the occurrence and during the continuance of any Amortization Event or Potential Amortization Eventof Default, the Administrative Agent may proceed directly and at once, without notice to any Borrower, against any or all of the Loan Parties to collect and recover all or any part of the Secured Obligations, without first proceeding against any other Loan Party or against any Collateral or other security for the payment or performance of any of the Secured Obligations, and each Borrower waives any provision that might otherwise require the Administrative Agent or the Lenders under applicable law to pursue or exhaust remedies against any Collateral or other Loan Party before pursuing such Borrower or its property. Each Borrower consents and agrees that neither the Administrative Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or against or in payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash or all of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IISecured Obligations.

Appears in 2 contracts

Samples: Credit Agreement (Flowco Holdings Inc.), Credit Agreement (AtriCure, Inc.)

Joint and Several. (a) Each Seller Parties, Administrative Agent and Buyers hereby acknowledge and agree that each Seller Party is jointly and severally liable to Administrative Agent and Buyers for the full, complete and punctual performance and satisfaction of the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration all obligations of the financial accommodations to be provided by the Purchasers any Seller Party under this Agreement, provided, however, Buyers (including any Repledgee) agree that Administrative Agent has the sole, exclusive and non-delegable right and power to enforce this Agreement and any other Program Agreement against a Seller Party or Guarantor, as applicable, as agent for the mutual benefitother Buyers/Repledgee and notwithstanding the following text or any Program Agreement. Accordingly, directly each Seller Party waives any and indirectlyall notice of creation, renewal, extension or accrual of each any of the Sellers Obligations and in consideration notice of the undertakings or proof of the other reliance by Administrative Agent or any Buyer upon such Seller to accept Party’s joint and several liability liability. Each Seller Party waives diligence, presentment, protest, demand for the Aggregate Unpaids. (b) Each payment and notice of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, default or nonpayment to or upon such Seller Party with respect to the payment Obligations. When pursuing its rights and performance of all of the Aggregate Unpaidsremedies hereunder against any Seller Party, it being the intention of the parties hereto that all the Aggregate Unpaids Administrative Agent and any Buyer may, but shall be under no obligation to, pursue such rights and remedies hereunder against any Seller Party or any other Person or against any collateral security for the joint Obligations or any right of offset with respect thereto, and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted failure by the Administrative Agent or any Purchaser under Buyer to pursue such other rights or in respect of the Aggregate Unpaids, any requirement of diligence remedies or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each collect any payments from such Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent Party or any Purchaser at such other Person to realize upon any time such collateral security or times in respect to exercise any such right of any default by any Seller in the performance or satisfaction of any termoffset, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations release of such Seller under this Section 14.19 Party or any such other Person or any such collateral security, or right of offset, shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that relieve such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables Party of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivablesliability hereunder, and shall not be required to make such selection ratably from impair or affect the Receivables owned by any rights and remedies, whether express, implied or available as a matter of the Sellers. (f) The provisions law, of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Administrative Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation Buyer against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIParty.

Appears in 2 contracts

Samples: Master Repurchase Agreement (Walter Investment Management Corp), Master Repurchase Agreement (Walter Investment Management Corp)

Joint and Several. (a) Each The obligations of the Sellers is accepting joint and several liability Note Parties hereunder and under the other Transaction Note Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept are joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Sellerseveral. Without limiting the generality of the foregoing, each Seller assents reference is hereby made to any other action or delay in acting or failure to act on the part Article II of the Agent or any Purchaser with respect Guaranty and Security Agreement, to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, which the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent Issuers and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate UnpaidsNote Parties are subject. Each Seller hereby covenants Note Issuer acknowledges that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, it is jointly and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers severally liable for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers Obligations and as often as occasion therefor may arise a result hereby unconditionally guaranties the full and without requirement on prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all Obligations of every kind and nature of each Issuer to the part Purchasers howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by the Purchasers. Each Issuer agrees that if this guaranty would, but for the application of this sentence, be unenforceable under applicable law, this guaranty shall be valid and enforceable to the maximum extent that would not cause this guaranty to be unenforceable under applicable law, and this guaranty shall automatically be deemed to have been amended accordingly at all relevant times. Each Issuer hereby agrees that its obligations under this guaranty shall be unconditional, irrespective of (a) the validity or enforceability of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, Obligations or any part thereof, made in or of any promissory note or other document evidencing all or any part of the Obligations, (b) the absence of any attempt to collect the Obligations from any other Issuer or any guarantor or other action to enforce the same, (c) the waiver or consent by any Purchaser or any other Person with respect to any provision of any agreement, instrument or document evidencing or securing all or any part of the Obligations, or any other agreement, instrument or document now or hereafter executed by any other Issuer and delivered to any Purchaser or any other Person (other than a waiver, forgiveness or consent by a Purchaser or other Person, as applicable, that reduces the amount of any of the Aggregate UnpaidsNote Obligations to such Person), is rescinded or must otherwise be restored or returned by (d) intentionally omitted, (e) any Purchaser’s election, in any proceeding instituted under the Agent Bankruptcy Code or any Purchaser upon the insolvency, other similar bankruptcy or reorganization insolvency legislation, of the application of Section 1111(b)(2) of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (f) any borrowing by any Issuer as debtor-in-possession, under Section 364 of the United States Bankruptcy Code or any other similar bankruptcy or insolvency legislation, (g) the disallowance, under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of all or any portion of any Purchaser’s claim(s) for repayment of the SellersObligations or (h) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of an Issuer or a guarantor (other than payment in full of the Note Obligations). Notwithstanding anything to the contrary set forth in this Section 9.23, it is the intent of the parties hereto that the liability incurred by each Issuer in respect of the Obligations of the other Issuers (and any Lien granted by each Issuer to secure such Obligations), not constitute a fraudulent conveyance under Section 548 of the Bankruptcy Code or otherwise, a fraudulent conveyance or fraudulent transfer under the provisions of this Section 14.19 will forthwith be reinstated any applicable law of any state or other governmental unit (“Fraudulent Conveyance”). Consequently, each Issuer and each Purchaser hereby agree that if a court of competent jurisdiction determines that the incurrence of liability by any Issuer in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness Obligations of any other Seller owing Issuer (or any Liens granted by such Issuer to secure such Seller until Obligations) would, but for the Aggregate Unpaids application of this sentence, constitute a Fraudulent Conveyance, such liability (and such Liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Agreement and the other Note Documents shall automatically be deemed to have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIamended accordingly.

Appears in 2 contracts

Samples: Senior Secured Priming Super Priority Debtor in Possession Note Purchase Agreement (Constar International Inc), Restructuring and Lock Up Agreement (Constar International Inc)

Joint and Several. (a) Each of the Sellers is accepting Company and CECE (each a “Borrower Loan Party”) hereby acknowledge and agree that each reference to “Borrower” in this Agreement shall be deemed a reference to each Borrower Loan Party collectively and each Borrower Loan Party hereby acknowledge and agree that it has joint and several liability hereunder on the Loans and under the other Transaction Documents in consideration of the financial accommodations to be provided on all Obligations owed by the Purchasers Borrowers under this Agreement, for the mutual benefit, directly Agreement and indirectly, of each of the Sellers that such liability is absolute and unconditional and shall not in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall any manner be the joint and several obligations of each of the Sellers without preferences affected or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted impaired by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent acts or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences omissions whatsoever by the Agent or any Purchaser in respect of any of the Aggregate UnpaidsLenders, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act Borrower Loan Parties’ joint and several liability on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 Loans and other Obligations shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable impaired by any winding upacceptance by the Lenders of any other security for or guarantors upon the Loans or any other Obligation or by any failure, reorganization, arrangement, liquidation, reconstruction neglect or similar proceeding with respect omission on the Lenders’ part to resort to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise Borrower Loan Parties for payment of the Loans or other Obligations or to realize upon or protect any collateral security therefor. Each Borrower Loan Party’s joint and without requirement several liability on the part Loans and other Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the AgentLoans or for what purposes such proceeds are used, and each Borrower Loan Party waives notice of borrowing requests issued by, and loans made to, other Borrower Loan Parties. Such joint and several liability of each Borrower shall also not be impaired or affected by (and each Lender, without notice to anyone, is hereby authorized to make from time to time) any Purchasers sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in, modification or disposition of any collateral security for the Loans or other Obligations or of any guaranty thereof. In order to enforce payment of the Loans and other Obligations, foreclose or otherwise realize on any collateral security therefor, and to exercise the rights granted to the Administrative Agent hereunder and thereunder and under applicable law, the Administrative Agent shall be under no obligation at any time to first resort to any collateral security, property, liens or any such successor other rights or assign first remedies whatsoever, and the Lenders shall have the right to marshal any enforce the Loans and the other Obligations irrespective of its whether or their claims not other proceedings or steps are pending seeking resort to exercise any of its or their rights against realization upon or from any of the foregoing. By its acceptance below, each Borrower Loan Party hereby expressly waives and surrenders any defense to its joint and several liability on the Loans and other Sellers or to exhaust any remedies available to it or them against Obligations based upon any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedyforegoing. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part In furtherance thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby each Borrower Loan Party agrees that wherever in this Agreement it will not enforce any is provided that a Borrower Loan Party is liable for a payment such obligation is the joint and several obligation of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller thereforeach Borrower Loan Party. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 2 contracts

Samples: Credit Agreement (Career Education Corp), Credit Agreement (Career Education Corp)

Joint and Several. (a) Each of the Sellers is accepting joint Obligation and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the SellersCompany, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be are the joint and several obligations of each Company, and Administrative Agent and the Lenders may proceed directly against any Company, or all of the Sellers Companies, any Loan Party, any Guarantor, or any Collateral or the Real Estate Collateral, or all of the foregoing, or any one of the foregoing or any combination of the foregoing, without preferences first proceeding against Company, any other Loan Party, any Guarantor or distinction between them. (c) Except any Collateral or the Real Estate Collateral, or without joining all Persons liable or potentially liable for any portion of the Obligations in one action. Each Company shall be jointly and severally liable as otherwise expressly provided in this Agreement, each Seller hereby waives notice primary obligor and not merely as surety for repayment of acceptance of its all Obligations arising under the Loan Documents. Such joint and several liability, notice liability shall apply to each Company regardless of whether any Loan was only requested by or on behalf of or made to any other Company or the proceeds of any Loan were used only by or on behalf of any other Company or any indemnification Obligation or any other Obligation arose only as a result of the occurrence action of any Amortization Event or Potential Amortization Event, or of other Company. If any demand for any Company makes a payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate UnpaidsObligations hereunder and under the other Loan Documents, any requirement it shall have the rights of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided contribution described in this Agreement). Each Seller hereby assents to, and waives notice of, any extension Section below against the other Company or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of Companies; provided that such Seller under this Section 14.19 Company shall not be discharged except by performance and then only to the extent exercise its right of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect contribution until all of the Aggregate Unpaids shall have been paid Obligations are Paid in full or otherwise fully satisfied. If at any timeFull; provided, any paymenthowever, or any part thereof, made that Administrative Agent is hereby granted a Lien and security interest in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights right of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until and may enforce such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after upon the occurrence and during the continuance of any Amortization an Event or Potential Amortization Eventof Default. It is the intent of each Company, the Administrative Agent and each Lender that each Company’s maximum obligation to repay the Obligations hereunder and under the other Loan Documents (the “Obligation Limit”) shall not exceed the greater of (i) the amount actually borrowed or received directly or indirectly by such Company with respect thereto and (ii) the amount which is $1.00 less than the amount which, if recorded by such Company as a liability, would render such Company not solvent. To the extent that any Company makes a payment on any of any amounts due the Obligations (a “Obligation Payment”), such Company (the “Entitled Company”) is entitled to contribution and indemnification from, and reimbursement by, each other Company (a “Contributing Company”) in the amount of the Contribution Obligation of such Contributing Company hereunder. The “Contribution Obligation” of a Contributing Company with respect to the indebtedness owing by any Seller to any other Seller Obligation Payment of an Entitled Company is hereby subordinated an amount equal to the prior payment in full in cash greater of (1) the lesser of (x) such Contributing Company’s Obligation Limit at the time the Obligation Payment is made and (y) such Contributing Company’s Allocable Share of the Aggregate Unpaids. Each Seller hereby agrees that after Obligation Payment, and (2) the occurrence and during amount of all proceeds from the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and Obligations actually received by such Seller as trustee Contributing Company or applied by the recipient thereof directly or indirectly for the Agent benefit of such Contributing Company, less the sum of any repayments thereof and any Obligation Payments made by such Contributing Company prior to the time the applicable Obligation Payment is made. The “Allocable Share” of a Contributing Company is a fraction, the numerator of which is such Contributing Company’s Obligation Limit at the time the applicable Obligation Payment is made and the Purchasers, and denominator of which is the sum of the Obligation Limits of all of the Contributing Companies (plus a similarly computed amount for any other Loan Party or Guarantor which has a similar obligation to make a contribution) as of such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IItime.

Appears in 2 contracts

Samples: Loan Modification Agreement (Pioneer Financial Services Inc), Credit Agreement (Pioneer Financial Services Inc)

Joint and Several. (a) Each The obligations of the Sellers is accepting joint and several liability Credit Parties hereunder and under the other Transaction Loan Documents in consideration are joint and several. Time is of the financial accommodations essence. (b) Without limiting the generality of the preceding clause (a): (i) the Borrower shall be liable for all amounts due to be provided by the Purchasers Administrative Agent, the Lenders and other Secured Parties under this AgreementAgreement and the other Loan Documents, regardless of which Bxxxxxxx actually receives the proceeds of the Term Loans or the manner in which the Administrative Agent or any Lender accounts for the mutual benefitTerm Loans on its books and records. Each Borrower’s Obligations, directly and indirectlyeach Borrower’s Obligations arising as a result of the joint and several liability of the Borrower hereunder, shall be separate and distinct obligations, but all such Obligations shall be primary obligations of each of the Sellers and in consideration of the undertakings of the other Seller to accept Borrower. Each Credit Party’s joint and several liability for the Aggregate Unpaids. Obligations hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (a) the validity or enforceability, avoidance or subordination of the Obligations of the other Credit Parties or of any Loan Document evidencing all or any part of the Obligations of the other Credit Parties, (b) Each the absence of any attempt to collect the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with Obligations from the other SellerCredit Parties or any other security therefor, with respect or the absence of any other action to enforce the payment and performance of all of the Aggregate Unpaidssame, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreementthe waiver, each Seller hereby waives notice of acceptance of its joint and several liabilityconsent, notice of the occurrence extension, forbearance or granting of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted indulgence by the Administrative Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding Required Lenders with respect to any Seller or provision of any instrument evidencing the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition Obligations of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any paymentCredit Parties, or any part thereof, made or any other agreement now or hereafter executed by the other Credit Parties and delivered to the Administrative Agent and the Lenders, (d) the failure by the Administrative Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or Collateral of the other Credit Parties, (e) any election in respect any proceeding instituted under the Bankruptcy Code of the application of section 1111(b)(2) of the Bankruptcy Code, (f) any borrowing or grant of a security interest by the other Credit Parties, as debtors-in-possession under section 364 of the Bankruptcy Code, (g) the disallowance of all or any portion of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned claim by the Administrative Agent or any Purchaser upon Lender for the insolvency, bankruptcy or reorganization of any repayment of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any Obligations of the other Transaction Credit Parties under section 502 of the Bankruptcy Code, or (h) any other circumstances which might constitute a legal or equitable discharge or defense of the other Credit Parties. With respect to each Borrower’s Obligations arising as a result of the joint and several liability of the Borrower under this Agreement and the other Loan Documents, each Borrower waives any payments made by it right to enforce any right of subrogation or any remedy which the Administrative Agent or any Purchaser with respect to Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Aggregate Unpaids Obligations, and any benefit of, and any right to participate in, any security or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments given to the Administrative Agent or any Purchaser hereunder Lender to secure payment of the Obligations or under any other Transaction Documents are hereby expressly made subordinate and junior in right liability of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, Borrower to the prior payment in full in cash of the Aggregate Unpaids and, in the event of Administrative Agent or any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence Lender. Upon and during the continuance of any Amortization Event or Potential Amortization Eventof Default, the Administrative Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Administrative Agent, the Lenders, and the Secured Parties shall be under no obligation to marshal any assets in favor of such Borrower or against or in payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash or all of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIObligations.

Appears in 1 contract

Samples: Credit Agreement (IMAC Holdings, Inc.)

Joint and Several. (a) Each The Borrower and each other Loan Party hereby unconditionally and irrevocably agrees it is jointly and severally liable hereunder to the Administrative Agent, the Issuing Lender, the Lenders and each other Secured Party. In furtherance thereof, the Borrower agrees that wherever in this Agreement or any other Loan Document it is provided that a Borrower is liable for a payment, such obligation is the joint and several obligation of the Sellers Borrower and wherever in this Agreement or any other Loan Document it is accepting provided that a Loan Party is liable for a payment, such obligation is the joint and several obligation of each Loan Party. The Borrower and each other Loan Party acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by the Administrative Agent, any Issuing Lender, any Lender or any other Person. Each Loan Party’s liability for the Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the credit extended hereunder or for what purposes such proceeds are used, and the Borrower and each other Loan Party waives notice of borrowing requests issued by, and loans or other extensions of credit made to, other Borrowers or other Loan Parties. The Borrower and each other Loan Party hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Person against any party liable for payment under this Agreement or any other Loan Document unless and until the occurrence of the Facility Termination Date. The Borrower’s and each other Loan Party’s joint and several liability hereunder and under the other Transaction Loan Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generallyshall, to the fullest extent permitted by applicable law, all demandsbe the unconditional liability of such Person irrespective of (i) the validity, notices and other formalities enforceability, avoidance or subordination of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for Secured Obligations or of any other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to collect any of the Obligations from any other Loan Party or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any other Secured Party with respect to any provision of any instrument executed by any other Loan Party evidencing or securing the payment of any of the Aggregate UnpaidsObligations, or any other agreement now or hereafter executed by any other Loan Party and delivered to the acceptance Administrative Agent, (iv) the failure by the Administrative Agent or any other Secured Party to take any steps to perfect or maintain the perfected status of its Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Aggregate Unpaids, Obligations or the acceptance Administrative Agent’s release of any partial payment thereonCollateral or of its Liens upon any Collateral, any waiver, consent (v) the release or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or releasecompromise, in whole or in part, of any Seller. Without limiting the generality liability of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made Loan Party for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder Obligations, (vi) any increase in the amount of the Obligations beyond any limits imposed herein 114 or in the amount of any interest, fees or other charges payable in connection therewith, in each case, if consented to elect by any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereofdecrease in the same, made in respect or (vii) any other circumstance that might constitute a legal or equitable discharge or defense of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cashLoan Party. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after After the occurrence and during the continuance of any Amortization Event or Potential Amortization Eventof Default, the Administrative Agent may proceed directly and at once, without notice to the Borrower or any other Loan Party, against any or all of the Loan Parties to collect and recover all or any part of the Obligations, without first proceeding against any other Borrower or any other Loan Party or against any Collateral or other security for the payment or performance of any of the Obligations, and the Borrower and each other Loan Party waives any provision that might otherwise require the Administrative Agent or any other Secured Party under applicable law to pursue or exhaust its remedies against any Collateral or other Loan Party before pursuing such Loan Party or its property. Each Loan Party consents and agrees that neither the Administrative Agent nor any other Secured Party shall be under any obligation to marshal any assets in favor of any Loan Party or against or in payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash or all of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIObligations.

Appears in 1 contract

Samples: Credit Agreement (Richardson Electronics, Ltd.)

Joint and Several. (a) Each of the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s 's financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx sue for or otherwise attempt to collect any indebtedness of any other Seller othex Xeller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.. THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (SIGNATURE PAGES FOLLOW) THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

Appears in 1 contract

Samples: Receivables Purchase Agreement (Dean Foods Co/)

Joint and Several. (a) Each The obligations of the Sellers is accepting joint and several liability Credit Parties hereunder and under the other Transaction Loan Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept are joint and several liability for the Aggregate Unpaidsseveral. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing: (i) reference is hereby made to Article II of the Guaranty and Security Agreement, to which the obligations of the Credit Parties are subject; and (ii) each Seller assents Person composing Borrower shall be liable for all amounts due to the Administrative Agent, the Lenders and other Secured Parties under this Agreement and the other Loan Documents, regardless of which Person actually receives the proceeds of the Term Loans or the manner in which the Administrative Agent or any Lender accounts for the Term Loans on its books and records. Each such Person’s Obligations, and each such Person’s Obligations arising as a result of the joint and several liability arising hereunder, shall be separate and distinct obligations, but all such Obligations shall be primary obligations of each Person composing Borrower. Each such Person’s Obligations arising as a result of the joint and several liability hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (a) the validity or enforceability, avoidance or subordination of the Obligations of the other Persons composing Borrower or of any Loan Document evidencing all or any part of the Obligations of the other Persons composing Borrower, (b) the absence of any attempt to collect the Obligations from the other Persons composing Borrower or any other security therefor, or the absence of any other action to enforce the same, (c) the waiver, consent, extension, forbearance or delay in acting or failure to act on granting of any indulgence by the part of Administrative Agent and the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding Required Lenders with respect to any Seller or provision of any instrument evidencing the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition Obligations of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any paymentPersons composing Borrower, or any part thereof, made or any other agreement now or hereafter executed by the other Persons composing Borrower and delivered to the Administrative Agent and the Lenders, (d) the failure by the Administrative Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or Collateral of the other Persons composing Borrower, (e) any election in respect any proceeding instituted under the Bankruptcy Code of the application of section 1111(b)(2) of the Bankruptcy Code, (f) any borrowing or grant of a security interest by the other Persons composing Borrower, as debtors-in-possession under section 364 of the Bankruptcy Code, (g) the disallowance of all or any portion of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned claim by the Administrative Agent or any Purchaser upon Lender for the insolvency, bankruptcy or reorganization of any repayment of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any Obligations of the other Transaction Persons composing Borrower under section 502 of the Bankruptcy Code, or (h) any other circumstances which might constitute a legal or equitable discharge or defense of any Person composing Borrower. With respect to each such Person’s Obligations arising as a result of the joint and several liability of the Borrower under this Agreement and the other Loan Documents, each Person composing Borrower waives any payments made by it right to enforce any right of subrogation or any remedy which the Administrative Agent or any Purchaser with respect to Lender now has or may hereafter have against such Person, any endorser or any guarantor of all or any part of the Aggregate Unpaids Obligations, and any benefit of, and any right to participate in, any security or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments given to the Administrative Agent or any Purchaser hereunder Lender to secure payment of the Obligations or under any other Transaction Documents are hereby expressly made subordinate and junior in right liability of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, Persons composing Borrower to the prior payment in full in cash of the Aggregate Unpaids and, in the event of Administrative Agent or any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence Lender. Upon and during the continuance of any Amortization Event or Potential Amortization Eventof Default, the Administrative Agent may proceed directly and at once, without notice, against any Person composing Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Person composing Borrower or any other Person, or against any security or collateral for the Obligations. Each Person composing Borrower consents and agrees that the Administrative Agent, the Lenders, and the Secured Parties shall be under no obligation to marshal any assets in favor of Person or against or in payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash or all of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIObligations.

Appears in 1 contract

Samples: Credit Agreement (FTE Networks, Inc.)

Joint and Several. (a) Each Borrower is part of a group of affiliated Persons, and each Borrower expects to receive substantial direct and indirect benefits from the extension of the Sellers credit facility established pursuant to this Agreement. In consideration of the foregoing, each Borrower hereby irrevocably and unconditionally agrees that it is accepting joint jointly and several liability severally liable for all of the liabilities, obligations, covenants and agreements of the Borrowers hereunder and under the other Transaction Documents in consideration Loan Documents, whether now or hereafter existing or due or to become due. The obligations of the financial accommodations to Borrowers under the Loan Documents may be provided enforced by the Purchasers Agent and the Lenders against any Borrower or all Borrowers in any manner or order selected by the Agent or the Required Lenders in their sole discretion. Each Borrower hereby irrevocably waives (i) any rights of subrogation and (ii) any rights of contribution, indemnity or reimbursement, in each case, that it may acquire or that may arise against any other Borrower due to any payment or performance made under this Agreement, for in each case until all Obligations shall have been fully satisfied. Without limiting the mutual benefitforegoing provisions of this Section 9.23, directly each Borrower acknowledges and indirectly, agrees that: (a) its obligations under this Agreement shall remain enforceable against it even though such obligations may be unenforceable or not allowable against any other Borrower due to the existence of each of the Sellers and in consideration of the undertakings of the an insolvency proceeding involving any other Seller to accept joint and several liability for the Aggregate Unpaids.Borrower; (b) Each its obligations under this Agreement are independent of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each any other Borrower, and a separate action or actions may be brought and prosecuted against it in respect of the Sellers without preferences such obligations irrespective of whether any action is brought against any other Borrower or distinction between them.any other Borrower is joined in any such action or actions; (c) Except as otherwise expressly provided it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following: (i) any lack of validity or enforceability of this Agreement, each Seller hereby waives notice any other Loan Document or any agreement or instrument relating hereto or thereto in respect of acceptance any other Borrower; (ii) any change in the time, manner or place of its joint and several liabilitypayment of, notice or in any other term of, all or any of the occurrence obligations of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser other Borrower under or in respect of this Agreement, the Aggregate Unpaidsother Loan Documents, or any requirement other amendment or waiver of diligence or any consent to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with departure from this Agreement or any other Loan Document, in respect of any other Borrower; (except as iii) any change, restructuring or termination of the structure or existence of any other Borrower; (iv) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other Person with respect to any obligations of the Borrowers under this Agreement or any other Loan Document; (v) any other circumstance (including any statute of limitations but other than the Obligations having been fully satisfied) or any existence of or reliance on any representation by any other Person that might otherwise provided in this Agreement). Each Seller hereby assents constitute a defense available to, and waives notice or a discharge of, any other Borrower; or (vi) the application of any Term Loan proceeds to, or the extension or postponement of the time any other credit for the payment of benefit of, any other Borrower, any other Credit Party, or any of their Subsidiaries; (d) its obligations under this Agreement and the Aggregate Unpaidsother Loan Documents shall continue to be effective or be reinstated, as the acceptance of case may be, if at any time any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the such obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser Person upon the insolvency, bankruptcy or reorganization of any of the Sellersother Borrower, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, all as though such payment had not been made.; and (ge) Each Seller it hereby agrees unconditionally and irrevocably waives any right to revoke its joint and several liability under the Loan Documents and acknowledges that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect such liability is continuing in nature and applies to any liability incurred by it hereunder or under any all obligations of the other Transaction Borrowers under the Loan Documents, any payments made by it to the Agent whether existing now or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller thereforfuture. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Term Loan Agreement (Talbots Inc)

Joint and Several. (a) Each of the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

Appears in 1 contract

Samples: Receivables Purchase Agreement (Dean Foods Co)

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Joint and Several. (a) Each All of the Sellers is accepting joint Obligations, covenants, representations and several liability hereunder and under the other Transaction Documents warranties of Borrower in consideration any of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids Loan Documents shall be the joint and several obligations Obligations, covenants, representations and warranties of each entity constituting Borrower, except to the extent otherwise set forth to the contrary including, but not limited to, Section S.9 of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, Schedule. Although Lender and Borrower intend that each Seller hereby waives notice of acceptance of its joint entity constituting Borrower shall be jointly and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand severally liable for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generallyall Obligations, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with that this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment other Loan Documents may be determined to secure indebtedness of any Borrower for which any other Borrower is not primarily liable, each Borrower expressly waives the benefit of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent defenses available to a guarantor, surety, endorser or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Selleraccommodation party dependent on an obligor's character as such. Without limiting the generality of the foregoing, each Seller assents to any such other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids Borrower's liability hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished affected or rendered unenforceable by impaired in any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned way by any of the Sellers. following acts or things (f) The provisions of this Section 14.19 are made for the benefit of the Agentwhich Lender is hereby expressly authorized to do, the Purchasers and their respective successors and assigns, and may be enforced by it omit or them suffer from time to time against without notice to or consent of anyone): (i) any acceptance of collateral security, guarantors, accommodation parties or sureties for any or all Obligations; (ii) any extension or renewal of any Obligations (whether or not for longer than the original period) or any modification of the Sellers as often as occasion therefor may arise and without requirement on the part interest rate, maturity or other terms of the AgentObligations; (iii) any waiver or indulgence granted to any Borrower, and any delay or lack of diligence in the enforcement of any or all Obligations owed by any Borrower; (iv) any full or partial release of, compromise or settlement with, or agreement not to sue, any Purchasers Borrower or the Guarantor or xxher person liable on any such successor Obligations; (v) any release, surrender, cancellation or assign first other discharge of any or all Obligations of Borrower or the acceptance of any instrument in renewal or substitution for any instrument evidencing any Obligations; (vi) any failure to marshal obtain collateral security (including rights of setoff) for any of its or their claims Obligations or to exercise any of its see to the proper or their rights against any of the other Sellers sufficient creation and perfection thereof, or to exhaust any remedies available to it or them against any of establish the other Sellers priority thereof, or to resort to preserve, protect, insure, care for, exercise or enforce any collateral security for any Obligations; (vii) any modification, alteration, substitution, exchange, surrender, cancellation, termination, release or other source change, impairment, limitation, loss or means discharge of obtaining payment any collateral security for any Obligations; (viii) any assignment, sale, pledge or other transfer of any of the Aggregate Unpaids hereunder Obligations owed by any Borrower; or (ix) any manner, order or method of application of any payments or credits on any Obligations. Each Borrower waives all rights that it may now have or hereafter acquire, whether by subrogation, contribution, reimbursement, recourse, exoneration, contract or otherwise, to elect recover from any other remedyBorrower or from any property of any other Borrower any sums paid under this Agreement. The provisions No Borrower will exercise or enforce any right of this Section 14.19 shall remain in effect contribution to recover any such sums from any person who is a co-obligor with any Borrower or a guarantor or surety of the Obligations or from any property of any such person or entity until all of the Aggregate Unpaids Obligations shall have been fully paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been madeand discharged. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Loan and Security Agreement (Cr Resorts Capital S De R L De C V)

Joint and Several. (a) Each of the Sellers is accepting All Obligations shall constitute joint and several liability obligations of the Borrowers and shall be secured by Agent’s Lien, for the benefit of the Secured Parties, upon all of the Collateral, and by all other Liens heretofore, now or at any time hereafter granted by each Borrower to Agent, for the benefit of the Secured Parties, to the extent provided in the Loan Documents under which such Lien arises. Each Borrower expressly acknowledges that it is part of a common enterprise with the other the Borrowers and that any financial accommodations by Agent and/or the Lenders to any other Borrower hereunder and under the other Transaction Loan Documents in consideration are and will be of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly direct and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids.indirect (b) Each of In the Sellersevent any Credit Party (each, jointly and severally, hereby irrevocably and unconditionally accepts, not merely a “Funding Credit Party”) shall make any payment or payments under this Agreement or shall suffer any loss as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence result of any Amortization Event or Potential Amortization Eventrealization upon any collateral granted by it to secure its obligations hereunder, or of any demand for any payment under this Agreementsuch Funding Credit Party shall have the right to seek contribution payments from each other Credit Party (each, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, a “Contributing Credit Party”) to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided . Nothing in this Agreement). Each Seller hereby assents to, Section 10.21(b) shall affect any Credit Party’s joint and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents several liability to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed Lenders for the entire amount of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaidsits Obligations. Each Seller hereby Credit Party covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of (i) its right to receive any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and contribution hereunder from a Contributing Credit Party shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as payment to all Obligations (other than contingent obligations for which no claim has been asserted) of the Credit Parties to Agent and the Lenders hereunder and (ii) it shall not exercise any increases in the Aggregate Unpaids arising rights that it may acquire by way of subrogation hereunder or thereunderunder any other Loan Document or at law by any payment made hereunder or otherwise, nor shall any Credit Party seek or be entitled to seek any contribution or reimbursement from any other Credit Party in respect of payments made by such Credit Party hereunder or under any other Loan Document unless and until the Facility Termination Date has occurred. As of any date of determination, any amount of contribution that any Funding Credit Party shall be entitled to recover hereunder shall be equal to the prior payment in full in cash maximum amount of such claim which could then be recovered from the applicable Contributing Credit Parties under this Section 10.21(b) without rendering such claim voidable or avoidable under §548 of the Aggregate Unpaids andBankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. (c) Nothing in this Section 10.21 shall affect any Borrower’s joint and several liability to Agent and the event Lenders for the entire amount of its Obligations. If any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids amounts shall be paid in full in cash before to any payment Credit Party on account of such subrogation or distribution of contribution rights at any charactertime prior to the Facility Termination Date, whether in cash, securities or other property, such amount shall be made to any held by such Credit Party in trust for Agent and the Lenders segregated from other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect funds of such indebtednessCredit Party, and shall, forthwith upon receipt by such amounts shall Credit Party, be collected, enforced and turned over to Agent in the exact form received by such Seller Credit Party (duly endorsed by such Credit Party to Agent, if required), to be applied against the Obligations, whether matured or unmatured, as trustee provided for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIherein.

Appears in 1 contract

Samples: Credit Agreement (Phreesia, Inc.)

Joint and Several. (a) Each The Borrower and each other Loan Party hereby unconditionally and irrevocably agrees it is jointly and severally liable hereunder to the Administrative Agent, the Issuing Lender, the Lenders and each other Secured Party. In furtherance thereof, the Borrower agrees that wherever in this Agreement or any other Loan Document it is provided that a Borrower is liable for a payment, such obligation is the joint and several obligation of the Sellers Borrower and wherever in this Agreement or any other Loan Document it is accepting provided that a Loan Party is liable for a payment, such obligation is the joint and several obligation of each Loan Party. The Borrower and each other Loan Party acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by the Administrative Agent, any Issuing Lender, any Lender or any other Person. Each Loan Party’s liability for the Obligations shall not in any manner be impaired or affected by who receives or uses the proceeds of the credit extended hereunder or for what purposes such proceeds are used, and the Borrower and each other Loan Party waives notice of borrowing requests issued by, and loans or other extensions of credit made to, other Borrowers or other Loan Parties. The Borrower and each other Loan Party hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Person against any party liable for payment under this Agreement or any other Loan Document unless and until the occurrence of the Facility Termination Date. The Borrower’s and each other Loan Party’s joint and several liability hereunder and under the other Transaction Loan Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generallyshall, to the fullest extent permitted by applicable law, all demandsbe the unconditional liability of such Person irrespective of (i) the validity, notices and other formalities enforceability, avoidance or subordination of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for Secured Obligations or of any other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to collect any of the Obligations from any other Loan Party or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any other Secured Party with respect to any provision of any instrument executed by any other Loan Party evidencing or securing the payment of any of the Aggregate UnpaidsObligations, or any other agreement now or hereafter executed by any other Loan Party and delivered to the acceptance Administrative Agent, (iv) the failure by the Administrative Agent or any other Secured Party to take any steps to perfect or maintain the perfected status of its Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Aggregate Unpaids, Obligations or the acceptance Administrative Agent’s release of any partial payment thereonCollateral or of its Liens upon any Collateral, any waiver, consent (v) the release or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or releasecompromise, in whole or in part, of any Seller. Without limiting the generality liability of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made Loan Party for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder Obligations, (vi) any increase in the amount of the Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, in each case, if consented to elect by any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any paymentBorrower, or any part thereofdecrease in the same, made in respect or (vii) any other circumstance that might constitute a legal or equitable discharge or defense of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cashLoan Party. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after After the occurrence and during the continuance of any Amortization Event or Potential Amortization Eventof Default, the Administrative Agent may proceed directly and at once, without notice to the Borrower or any other Loan Party, against any or all of the Loan Parties to collect and recover all or any part of the Obligations, without first proceeding against any other Borrower or any other Loan Party or against any Collateral or other security for the payment or performance of any of the Obligations, and the Borrower and each other Loan Party waives any provision that might otherwise require the Administrative Agent or any other Secured Party under applicable law to pursue or exhaust its remedies against any Collateral or other Loan Party before pursuing such Loan Party or its property. Each Loan Party consents and agrees that neither the Administrative Agent nor any other Secured Party shall be under any obligation to marshal any assets in favor of any Loan Party or against or in payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash or all of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIObligations.

Appears in 1 contract

Samples: Credit Agreement (Richardson Electronics, Ltd.)

Joint and Several. (a) Each of Notwithstanding anything herein or in any Loan Document to the Sellers is accepting contrary, the Borrowers shall have joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate UnpaidsLoan Document Obligations, without regard to any defense (other than the ownership defense that payment in full has been made), setoff or counterclaim which may at any time be available to or be asserted by any other Loan Party against the Lenders, or by any other circumstance whatsoever (with or without notice to or knowledge of such Receivablesthe Borrowers) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrowers’ liability hereunder, in bankruptcy or in any other instance, and the Loan Document Obligations of the Borrowers hereunder shall not be required to make such selection ratably from conditioned or contingent upon the Receivables owned pursuit by the Lenders or any other person at any time of any right or remedy against the Borrowers or against any other person which may be or become liable in respect of all or any part of the Sellers. Loan Document Obligations or against any Collateral or Guarantee therefor or right of offset with respect thereto. The Borrowers hereby acknowledge that this Agreement is the independent and several obligation of each Borrower (fregardless of which Borrower shall have delivered a request for borrowings under Section 2.03) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it against each Borrower separately, whether or them from time to time not enforcement of any right or remedy hereunder has been sought against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agentother Borrower. Each Borrower hereby expressly waives, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be Loans made to any other Seller therefor. (h) Each Borrower hereunder and any of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing hereunder by any Seller to any such other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts Loan Parties in respect of such indebtednessLoans, diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent, the Collateral Agent or any Lender exhaust any right, power or remedy or proceed against such other Loan Parties under this Agreement or any other agreement or instrument referred to herein or against any other person under any other guarantee of, or security for, any of such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIowing hereunder.

Appears in 1 contract

Samples: Credit Agreement (Endeavor Group Holdings, Inc.)

Joint and Several. This Agreement may be executed in counterparts (aand by different parties(a) Each hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and any separate letter agreements with respect to fees(b) payable to the Sellers is accepting joint Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and several liability hereunder supersede any and under all previous agreements and understandings, oral or written, relating to the other Transaction Documents subject matter hereof. Except as provided in consideration of the financial accommodations to be provided Section 4.01, this Agreement shall become effective(c) when it shall have been executed by the Purchasers under this AgreementAdministrative Agent and when the Administrative Agent shall have received counterparts hereof which, for when taken together, bear the mutual benefit, directly and indirectly, signatures of each of the Sellers other parties hereto, and in consideration of the undertakings of the other Seller to accept joint thereafter shall be binding upon and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect inure to the payment and performance of all of the Aggregate Unpaids, it being the intention benefit of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement. Each Person constituting the general partner of Borrower shall be bound(d) jointly and severally with one another to make, keep, observe and may perform the representations, warranties, covenants, agreements, obligations and liabilities imposed by this Agreement and the other Loan Documents upon the “Borrower.” The Borrower agrees that it shall never be enforced by it or them from time entitled to time against any or all be subrogated to any(e) of the Sellers as often as occasion therefor may arise and without requirement on the part of the Administrative Agent, any Purchasers ’s or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their Lender’s rights against any of the Credit Party or other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids Person or any collateral security therefor until such time as all or offset rights held by the Administrative Agent or the Lenders for payment of the Aggregate Unpaids have been paid in Loans until the full in cashand final payment of the Loans and all other obligations incurred under the Loan Documents and final termination of the Lenders’ obligations, if any, to make further advances under this Agreement or to provide any other financial accommodations to any Credit Party. Severability. Any claim which provision of this Agreement held to be invalid, illegal orSECTION 9.07 unenforceable in any Seller may have against any other Seller with respect jurisdiction shall, as to any payments such jurisdiction, be ineffective to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect extent of such indebtednessinvalidity, such amounts shall be collectedillegality or unenforceability without affecting the validity, enforced legality and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.enforceability - 127 - \\DC - 769032/000001 - 15799738 v7

Appears in 1 contract

Samples: Credit Agreement (Griffin Capital Essential Asset REIT, Inc.)

Joint and Several. (a) Each All of the Sellers is accepting joint Obligations, covenants, representations and several liability hereunder and under the other Transaction Documents warranties of Borrower in consideration any of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids Receivables Loan Documents shall be the joint and several obligations Obligations, covenants, representations and warranties of each of entity constituting Borrower, except to the Sellers without preferences or distinction between them. (c) Except as extent otherwise expressly provided in this Agreement, set forth to the contrary. Although Lender and Borrower intend that each Seller hereby waives notice of acceptance of its joint entity constituting Borrower shall be jointly and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand severally liable for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generallyall Obligations, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with that this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment other Receivables Loan Documents may be determined to secure indebtedness of any Borrower for which any other Borrower is not primarily liable, each Borrower expressly waives the benefit of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent defenses available to a guarantor, surety, endorser or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Selleraccommodation party dependent on an obligor's character as such. Without limiting the generality of the foregoing, each Seller assents to any such other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids Borrower's liability hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished affected or rendered unenforceable by impaired in any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned way by any of the Sellers. following acts or things (f) The provisions of this Section 14.19 are made for the benefit of the Agentwhich Lender is hereby expressly authorized to do, the Purchasers and their respective successors and assigns, and may be enforced by it omit or them suffer from time to time against without notice to or consent of anyone): (i) any acceptance of collateral security, guarantors, accommodation parties or sureties for any or all Obligations; (ii) any extension or renewal of any Obligations (whether or not for longer than the original period) or any modification of the Sellers as often as occasion therefor may arise and without requirement on the part interest rate, maturity or other terms of the AgentObligations; (iii) any waiver or indulgence granted to any Borrower, and any delay or lack of diligence in the enforcement of any or all Obligations owed by any Borrower; (iv) any full or partial release of, compromise or settlement with, or agreement not to xxx, any Purchasers Borrower or the Guarantor or other person liable on any such successor Obligations; (v) any release, surrender, cancellation or assign first other discharge of any or all Obligations of Borrower or the acceptance of any instrument in renewal or substitution for any instrument evidencing any Obligations; (vi) any failure to marshal obtain collateral security (including rights of setoff) for any of its or their claims Obligations or to exercise any of its see to the proper or their rights against any of the other Sellers sufficient creation and perfection thereof, or to exhaust any remedies available to it or them against any of establish the other Sellers priority thereof, or to resort to preserve, protect, insure, care for, exercise or enforce any collateral security for any Obligations; (vii) any modification, alteration, substitution, exchange, surrender, cancellation, termination, release or other source change, impairment, limitation, loss or means discharge of obtaining payment any collateral security for any Obligations; (viii) any assignment, sale, pledge or other transfer of any of the Aggregate Unpaids hereunder Obligations owed by any Borrower; or (ix) any manner, order or method of application of any payments or credits on any Obligations. Each Borrower waives all rights that it may now have or hereafter acquire, whether by subrogation, contribution, reimbursement, recourse, exoneration, contract or otherwise, to elect recover from any other remedyBorrower or from any property of any other Borrower any sums paid under this Agreement. The provisions No Borrower will exercise or enforce any right of this Section 14.19 shall remain in effect contribution to recover any such sums from any person who is a co-obligor with any Borrower or a guarantor or surety of the Obligations or from any property of any such person or entity until all of the Aggregate Unpaids Obligations shall have been fully paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been madeand discharged. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Loan and Security Agreement (Cr Resorts Capital S De R L De C V)

Joint and Several. 2.8.1 Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each Borrower hereby accepts (aor shall accept) Each of the Sellers is accepting joint and several liability hereunder and under the other Transaction Loan Documents in consideration of the financial accommodations to be provided by the Purchasers Lender under this AgreementAgreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Sellers Borrower and in consideration of the undertakings of the each other Seller Borrower to accept joint and several liability for the Aggregate Unpaids. (b) Loan and the other Obligations hereunder. Each of the SellersBorrower, jointly and severally, hereby irrevocably and unconditionally acceptsaccepts (or shall accept), not merely as a surety but also as a co-debtor, joint and several liability with the each other SellerBorrower, with respect to the payment and performance of all of the Aggregate UnpaidsObligations (including, without limitation, any Obligations arising under this Section 2.8, it being the intention of the parties hereto that all the Aggregate Unpaids Obligations shall be the joint and several obligations of each of the Sellers Borrower without preferences or distinction between among them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint . If and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection that any Borrower shall fail to make any payment with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of respect to any of the Aggregate Unpaids, the acceptance of any payment of Obligations as and when due or to perform any of the Aggregate UnpaidsObligations in accordance with the terms thereof, then in each such event each other Borrower will make such payment with respect to, or perform, such Obligation. Subject to the terms and conditions hereof, the acceptance Obligations of any partial payment thereoneach Borrower under the provisions of this Section 2.8 constitute the absolute and unconditional, any waiverfull recourse Obligations of each Borrower enforceable against each such person to the full extent of its properties and assets, consent irrespective of the validity, regularity or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision enforceability of this Agreement, any and all the other indulgences whatsoever by the Agent Loan Documents or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchasercircumstances whatsoever. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) 2.8.2 The provisions of this Section 14.19 2.8 are made for the benefit of the Agent, the Purchasers Lender and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers Borrower as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers the Lender or any such successor successors or assign assigns first to marshal xxxxxxxx any of its or their claims or to exercise any of its or their rights against any of the other Sellers Borrower or to exhaust any remedies available to it or them against any of the other Sellers Borrower or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids Obligations hereunder or to elect any other remedy. The provisions of this Section 14.19 2.8 shall remain in effect until all of the Aggregate Unpaids Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) 2.8.3 Each Seller Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against the any other Seller Borrower with respect to any liability incurred by it hereunder or under any of the other Transaction Loan Documents, any payments made by it to the Agent or any Purchaser the Lenders with respect to any of the Aggregate Unpaids Obligations or any collateral security therefor Collateral until such time as all of the Aggregate Unpaids Obligations have been paid in full in cashfull. Any claim which any Seller Borrower may have against any other Seller another Borrower with respect to any payments to the Agent or any Purchaser the Lenders hereunder or under any other Transaction Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any SellerBorrower, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller another Borrower therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Loan Agreement (STAG Industrial, Inc.)

Joint and Several. (a) Each Borrower is part of a group of affiliated Persons, and each Borrower expects to receive substantial direct and indirect benefits from the extension of the Sellers credit facility established pursuant to this Agreement. In consideration of the foregoing, each Borrower hereby irrevocably and unconditionally agrees that it is accepting joint jointly and several liability severally liable for all of the liabilities, obligations, covenants and agreements of the Borrowers hereunder and under the other Transaction Documents in consideration Loan Documents, whether now or hereafter existing or due or to become due. The obligations of the financial accommodations to Borrowers under the Loan Documents may be provided enforced by the Purchasers Term Agent and the Term Lenders against any Borrower or all Borrowers in any manner or order selected by the Term Agent or the Required Lenders in their sole discretion. Each Borrower hereby irrevocably waives (i) any rights of subrogation and (ii) any rights of contribution, indemnity or reimbursement, in each case, that it may acquire or that may arise against any other Borrower due to any payment or performance made under this Agreement, for in each case until all Obligations shall have been fully satisfied. Without limiting the mutual benefitforegoing provisions of this Section 8.23, directly each Borrower acknowledges and indirectly, agrees that: (a) its obligations under this Agreement shall remain enforceable against it even though such obligations may be unenforceable or not allowable against any other Borrower due to the existence of each of the Sellers and in consideration of the undertakings of the an insolvency proceeding involving any other Seller to accept joint and several liability for the Aggregate Unpaids.Borrower; (b) Each its obligations under this Agreement are independent of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each any other Borrower, and a separate action or actions may be brought and prosecuted against it in respect of the Sellers without preferences such obligations irrespective of whether any action is brought against any other Borrower or distinction between them.any other Borrower is joined in any such action or actions; (c) Except as otherwise expressly provided it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following: (i) any lack of validity or enforceability of this Agreement, each Seller hereby waives notice any other Loan Document or any agreement or instrument relating hereto or thereto in respect of acceptance any other Borrower; (ii) any change in the time, manner or place of its joint and several liabilitypayment of, notice or in any other term of, all or any of the occurrence obligations of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser other Borrower under or in respect of this Agreement, the Aggregate Unpaidsother Loan Documents, or any requirement other amendment or waiver of diligence or any consent to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with departure from this Agreement or any other Loan Document, in respect of any other Borrower; (except as iii) any change, restructuring or termination of the structure or existence of any other Borrower; (iv) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other Person with respect to any obligations of the Borrowers under this Agreement or any other Loan Document; (v) any other circumstance (including any statute of limitations but other than the Obligations having been fully satisfied) or any existence of or reliance on any representation by any other Person that might otherwise provided in this Agreement). Each Seller hereby assents constitute a defense available to, and waives notice or a discharge of, any other Borrower; or (vi) the application of any Term Loan proceeds to, or the extension or postponement of the time any other credit for the payment of benefit of, any other Borrower, any other Credit Party, or any of their Subsidiaries; (d) its obligations under this Agreement and the Aggregate Unpaidsother Loan Documents shall continue to be effective or be reinstated, as the acceptance of case may be, if at any time any payment of any such obligations is rescinded or must otherwise be returned by any Person upon the insolvency, bankruptcy or reorganization of any other Borrower, all as though such payment had not been made; and (e) it hereby unconditionally and irrevocably waives any right to revoke its joint and several liability under the Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Aggregate UnpaidsBorrowers under the Loan Documents, the acceptance of any partial payment thereon, any waiver, consent whether existing now or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Sellerfuture. Without limiting the generality of the foregoing, each Seller assents reference is hereby made to any other action or delay in acting or failure to act on the part Article II of the Agent or any Purchaser with respect Guaranty and Security Agreement, to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, which the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent Borrower and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate UnpaidsCredit Parties are subject. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Term Loan Agreement (Furniture Brands International Inc)

Joint and Several. (a) All Loans made to the Borrowers shall be deemed jointly funded to, and received by, the Borrowers. Each of Borrower jointly and severally agrees to pay, and shall be jointly and severally liable for the Sellers is accepting payment and performance of, all Obligations. Each Borrower acknowledges and agrees that the joint and several liability hereunder and under the other Transaction Documents in consideration of the Borrowers is provided as an inducement to the Agent to provide loans and other financial accommodations to the Borrowers, and that each such loan or other financial accommodation shall be provided deemed to have been done or extended by the Purchasers Agent in consideration of, and in reliance upon, the joint and several liability of the Borrowers. The joint and several liability of each Borrower hereunder is absolute, unconditional and continuing, regardless of the validity or enforceability of any of the Obligations, or the fact that a Lien in any Collateral may not be enforceable or subject to equities or defenses or prior claims in favor of others, or may be invalid or defective in any way and for any reason. Each Borrower hereby waives: (a) all notices to which such Borrower may be entitled as a co-obligor with respect to the Obligations, including, without limitation, notice of (i) acceptance of this Agreement, (ii) the making of loans or other financial accommodations under this Agreement, for or the mutual benefit, directly and indirectly, of each creation or existence of the Sellers Obligations, and in consideration (iii) presentment, demand, protest, notice of protest and notice of non-payment; and (b) all defenses based on (i) any modification (or series of modifications) of this Agreement or the other Loan Documents that may create a substituted contract, or that may fundamentally alter the risks imposed on such Borrower hereunder, (ii) the release of any other Borrower (or any other Loan Party) from its duties under this Agreement or the other Loan Documents, or the extension of the undertakings time of performance of any other Borrower’s duties hereunder or thereunder, (iii) the taking, releasing, impairment or abandonment of any Collateral, or the settlement, release or compromise of the Obligations or any other Seller Borrower’s or Guarantor’s liabilities with respect to accept all or any portion of the Obligations, or (iv) any other act (or any failure to act) that fundamentally alters the risks imposed on such Borrower by virtue of its joint and several liability for hereunder. It is the Aggregate Unpaids. (b) Each intent of the Sellers, jointly each Borrower by this paragraph to waive any and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, all suretyship defenses available to such Borrower with respect to the payment and performance Obligations, whether or not specifically enumerated above. Notwithstanding any provisions of all of this Agreement to the Aggregate Unpaidscontrary, it being is the intention intent of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each nature of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice liabilities of the occurrence Borrowers, and the Liens granted by the Borrowers to secure the Obligations, not constitute a fraudulent conveyance under Section 548 of Chapter 11 of Title II of the United States Code (11 U.S.C. § 101, et seq.), as amended, or a fraudulent conveyance or fraudulent transfer under the applicable provisions of any Amortization Event fraudulent conveyance, fraudulent transfer or Potential Amortization Eventsimilar law of any Governmental Authority, as in effect from time to time. Accordingly, the Agent and the Borrowers agree that if the obligations and liabilities of any Borrower hereunder, or any Liens granted by such Borrower securing the Obligations would, but for the application of this sentence, constitute a fraudulent conveyance or fraudulent transfer under any demand for applicable Requirement of Law, the obligations and liabilities of such Borrower hereunder, as well as the Liens securing such obligations and liabilities, shall be valid and enforceable only to the maximum extent that would not cause such obligations, liabilities or Liens to constitute a fraudulent conveyance or fraudulent transfer under any applicable Requirement of Law. Each Loan Party hereby agrees that until the full and final payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect and satisfaction of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to Obligations and the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision termination of this Agreement, such Loan Party will not exercise any and all subrogation, contribution or other indulgences whatsoever by the Agent right or remedy against any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution other Loan Party or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids Obligations arising by reason of such Loan Party’s performance or the satisfaction of its joint and several liability hereunder. In addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller Loan Party agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of (a) such Loan Party’s right to receive any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any such subrogation, contribution or other Seller rights is hereby subordinated to the prior full and final payment in full in cash and satisfaction of the Aggregate Unpaids. Each Seller hereby Obligations, and (b) such Loan Party agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not to demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller payment until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding and final payment and satisfaction of the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent Obligations and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IItermination of this Agreement.

Appears in 1 contract

Samples: Loan and Security Agreement (AMERI Holdings, Inc.)

Joint and Several. (a) Each Borrower is part of a group of affiliated Persons, and each Borrower expects to receive substantial direct and indirect benefits from the extension of the Sellers credit facility established pursuant to this Agreement. In consideration of the foregoing, each Borrower hereby irrevocably and unconditionally agrees that it is accepting joint jointly and several liability severally liable for all of the liabilities, obligations, covenants and agreements of the Borrowers hereunder and under the other Transaction Documents in consideration Loan Documents, whether now or hereafter existing or due or to become due. The obligations of the financial accommodations to Borrowers under the Loan Documents may be provided enforced by the Purchasers Administrative Agent and the Lenders against any Borrower or all Borrowers in any manner or order selected by the Administrative Agent or the Required Lenders in their sole discretion. Each Borrower hereby irrevocably waives (i) any rights of subrogation and (ii) any rights of contribution, indemnity or reimbursement, in each case, that it may acquire or that may arise against any other Borrower due to any payment or performance made under this Agreement, for in each case until all Obligations shall have been fully satisfied. Without limiting the mutual benefitforegoing provisions of this Section 11.19, directly each Borrower acknowledges and indirectly, of each of the Sellers agrees that: (a) its obligations under this Agreement and in consideration of the undertakings of the other Seller Loan Documents shall remain enforceable against it even though such obligations may be unenforceable or not allowable against any other Borrower due to accept joint and several liability for the Aggregate Unpaids.existence of an insolvency proceeding involving any other Borrower; (b) Each its obligations under this Agreement and the other Loan Documents are independent of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each any other Borrower, and a separate action or actions may be brought and prosecuted against it in respect of the Sellers without preferences such obligations irrespective of whether any action is brought against any other Borrower or distinction between them.any other Borrower is joined in any such action or actions; (c) Except as otherwise expressly provided it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following: (i) any lack of validity or enforceability of this Agreement, each Seller hereby waives notice any other Loan Document or any agreement or instrument relating hereto or thereto in respect of acceptance any other Borrower; (ii) any change in the time, manner or place of its joint and several liabilitypayment of, notice or in any other term of, all or any of the occurrence obligations of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser other Borrower under or in respect of this Agreement, the Aggregate Unpaidsother Loan Documents, or any requirement other amendment or waiver of diligence or any consent to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with departure from this Agreement or any other Loan Document, in respect of any other Borrower; (except as iii) any change, restructuring or termination of the structure or existence of any other Borrower; (iv) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other Person with respect to any obligations of the Borrowers under this Agreement or any other Loan Document; (v) any other circumstance (including any statute of limitations but other than the Obligations having been fully satisfied) or any existence of or reliance on any representation by any other Person that might otherwise provided in this Agreement). Each Seller hereby assents constitute a defense available to, and waives notice or a discharge of, any other Borrower; or (vi) the application of any Loan proceeds to, or the extension or postponement of the time any other credit for the payment of benefit of, any other Borrower, any other Loan Party, or any of their Subsidiaries; (d) its obligations under this Agreement and the Aggregate Unpaidsother Loan Documents shall continue to be effective or be reinstated, as the acceptance of case may be, if at any time any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the such obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser Person upon the insolvency, bankruptcy or reorganization of any of the Sellersother Borrower, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, all as though such payment had not been made.; and (ge) Each Seller it hereby agrees unconditionally and irrevocably waives any right to revoke its joint and several liability under the Loan Documents and acknowledges that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect such liability is continuing in nature and applies to any liability incurred by it hereunder or under any all obligations of the other Transaction Borrowers under the Loan Documents, any payments made by it to the Agent whether existing now or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller thereforfuture. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Credit Agreement (Dennys Corp)

Joint and Several. (a) Each Borrower shall be obligated, bound by, subject to and comply with each and every agreement, covenant and provision contained in this Agreement and shall be deemed to have made every representation warranty contained in this Agreement. Each Borrower acknowledges and agrees that it is jointly and severally liable with the other Borrower for all obligations, liabilities and indebtedness created or arising hereunder and the release or substitution of the Sellers is accepting any other Borrower shall not release or diminish its liability hereunder. Each Borrower agrees that al obligations, liabilities and indebtedness are joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several primary obligations of each of them, enforceable against each Borrower separately or all or any combination of Borrowers together notwithstanding of any right or power of any party to assert any claim or defense as to the Sellers without preferences invalidity or distinction between them. (c) Except as otherwise expressly provided in this Agreementunenforceability of any such obligations, each Seller liabilities and indebtedness. Each Borrower hereby waives notice of acceptance of its joint and several liabilityany defense it may claim as a guarantor, notice of the occurrence of any Amortization Event surety or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement)accommodation party. Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers Lender may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and time, without requirement on the part of the Agent, any Purchasers or any such successor or assign first notice to marshal any of its Borrowers, (a) obtain or their claims or release any security interest in any property to exercise secure any of its such obligations, liabilities and indebtedness; (b) obtain or their rights against any of release the other Sellers primary or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment secondary liability of any of the Aggregate Unpaids hereunder party or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser parties with respect to any of such obligations, liabilities and indebtedness (including, without limitation, the Aggregate Unpaids or any collateral security therefor until such time as all liability of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller Borrower); (c) extend or renew for any period, alter or exchange any of such obligations, liabilities and indebtedness or release or compromise any of such obligations, liabilities and indebtedness of any obligor with respect to any payments to the Agent thereof; or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as (d) resort to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior Borrower for payment in full in cash of the Aggregate Unpaids and, in the event of any insolvencysuch obligations, bankruptcy, receivership, liquidation, reorganization liabilities and indebtedness whether or other similar proceeding under not the laws of any jurisdiction relating Lender shall have resorted to any Seller, its debts Collateral or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of Borrower or any Amortization Event other party primarily or Potential Amortization Event, the payment of any amounts due secondarily liable with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIobligations, liabilities and indebtedness.

Appears in 1 contract

Samples: Credit and Security Agreement (Nature Vision, Inc.)

Joint and Several. BORROWERS ACKNOWLEDGE AND IRREVOCABLY AGREE THAT THEY SHALL BE JOINTLY AND SEVERALLY LIABLE, IN ALL RESPECTS, FOR THE PAYMENT AND PERFORMANCE OF THE LOANS, ALL OTHER OBLIGATIONS, AND THIS AGREEMENT (a) Each of the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this AgreementINCLUDING EACH OF THE OBLIGATIONS, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this AgreementCOVENANTS AND AGREEMENTS SET FORTH HEREIN). Each Seller Borrower hereby assents toagrees that it is jointly and severally liable for, and waives notice ofabsolutely and unconditionally promises to pay to Lender, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Obligations and all costs and expenses including, without limitation, all court costs and Attorney Costs and paralegals’ fees (including allocated costs of in-house counsel and paralegals) and expenses paid or incurred by Lender in endeavoring to collect all or any part of the Obligations from, or in prosecuting any action against, any extension Borrower or postponement any guarantor of all or any part of the time for Obligations. Each Borrower further agrees that the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent Obligations may be extended or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, renewed in whole or in partpart without notice to or further assent from it, at and that it remains bound pursuant to this Section 15 notwithstanding any time such extension or timesrenewal. Each Borrower is primarily and not secondarily liable for all Obligations, including all Obligations of each other Borrower. Each Borrower waives any security for right to require Lender to xxx any of the Aggregate Unpaids Borrower, any guarantor, or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action Person obligated for all or delay in acting or failure to act on the any part of the Agent Obligations (each, an “Obligated Party”), or otherwise to enforce its payment against any Collateral securing all or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been madeObligations. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Loan and Security Agreement (Pernix Group, Inc.)

Joint and Several. (a) Each Borrower is part of a group of affiliated Persons, and each Borrower expects to receive substantial direct and indirect benefits from the extension of the Sellers credit facility established pursuant to this Agreement. In consideration of the foregoing, each Borrower hereby irrevocably and unconditionally agrees that it is accepting joint jointly and several liability severally liable for all of the liabilities, obligations, covenants and agreements of the Borrowers hereunder and under the other Transaction Documents in consideration Loan Documents, whether now or hereafter existing or due or to become due. The obligations of the financial accommodations Borrowers under the Loan Documents may be enforced by Agent and the Lenders against any Borrower or all Borrowers in any manner or order selected by Agent or the Required Lenders in their sole discretion. Each Borrower hereby irrevocably waives (i) any rights of subrogation and (ii) any rights of contribution, indemnity or reimbursement, in each case, that it may acquire or that may arise against any other Borrower due to be provided by the Purchasers any payment or performance made under this Agreement, for in each case until all Obligations shall have been fully satisfied. Without limiting the mutual benefitforegoing provisions of this Section 9.23, directly each Borrower acknowledges and indirectly, agrees that: (a) its obligations under this Agreement shall remain enforceable against it even though such obligations may be unenforceable or not allowable against any other Borrower due to the existence of each of the Sellers and in consideration of the undertakings of the an insolvency proceeding involving any other Seller to accept joint and several liability for the Aggregate Unpaids.Borrower; (b) Each its obligations under this Agreement are independent of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each any other Borrower, and a separate action or actions may be brought and prosecuted against it in respect of the Sellers without preferences such obligations irrespective of whether any action is brought against any other Borrower or distinction between them.any other Borrower is joined in any such action or actions; (c) Except as otherwise expressly provided it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following: (i) any lack of validity or enforceability of this Agreement, each Seller hereby waives notice any other Loan Document or any agreement or instrument relating hereto or thereto in respect of acceptance any other Borrower; (ii) any change in the time, manner or place of its joint and several liabilitypayment of, notice or in any other term of, all or any of the occurrence obligations of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser other Borrower under or in respect of this Agreement, the Aggregate Unpaidsother Loan Documents, or any requirement other amendment or waiver of diligence or any consent to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with departure from this Agreement or any other Loan Document, in respect of any other Borrower; (except as iii) any change, restructuring or termination of the structure or existence of any other Borrower; (iv) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other Person with respect to any obligations of the Borrowers under this Agreement or any other Loan Document; (v) any other circumstance (including any statute of limitations but other than the Obligations having been fully satisfied) or any existence of or reliance on any representation by any other Person that might otherwise provided in this Agreement). Each Seller hereby assents constitute a defense available to, and waives notice or a discharge of, any other Borrower; or (vi) the application of any Loan proceeds to, or the extension or postponement of the time any other credit for the payment of benefit of, any other Borrower, any other Credit Party, or any of their Subsidiaries; (d) its obligations under this Agreement and the Aggregate Unpaidsother Loan Documents shall continue to be effective or be reinstated, as the acceptance of case may be, if at any time any payment of any such obligations is rescinded or must otherwise be returned by any Person upon the insolvency, bankruptcy or reorganization of any other Borrower, all as though such payment had not been made; and (e) it hereby unconditionally and irrevocably waives any right to revoke its joint and several liability under the Loan Documents and acknowledges that such liability is continuing in nature and applies to all obligations of the Aggregate UnpaidsBorrowers under the Loan Documents, the acceptance of any partial payment thereon, any waiver, consent whether existing now or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Sellerfuture. Without limiting the generality of the foregoing, each Seller assents reference is hereby made to any other action or delay in acting or failure to act on the part Article II of the Agent or any Purchaser with respect Guaranty and Security Agreement, to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, which the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent Borrower and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate UnpaidsCredit Parties are subject. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Credit Agreement (Furniture Brands International Inc)

Joint and Several. (a) Each of the Sellers is accepting Borrowers hereby acknowledges and agrees that it has joint and several liability hereunder on the Loans, Notes, Reimbursement Obligations, Hedging Liability, Funds Transfer and Deposit Account Liability and on all Obligations owed by the Borrower under this Agreement and the other Transaction Loan Documents and that such liability is absolute and unconditional and shall not in consideration of the financial accommodations to any manner be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences affected or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default impaired by any Seller in the performance acts or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences omissions whatsoever by the Agent Administrative Agent, the L/C Issuers or any Purchaser in respect of any of the Aggregate UnpaidsLender, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act of the Borrowers’ joint and several liability on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligationsLoans, it being the intention of each Seller thatNotes, so long as any of the Aggregate Unpaids hereunder remain unsatisfiedReimbursement Obligations, the obligations of such Seller Hedging Liability, Funds Transfer and Deposit Account Liability and other Obligations under this Section 14.19 Agreement and the other Loan Documents shall not be discharged except impaired by performance any acceptance by the Administrative Agent, any L/C Issuer or any Lender of any other security for or guarantors upon the Loans, Notes, Reimbursement Obligations, Hedging Liability, Funds Transfer and then only to the extent of such performance. The obligations of each Seller Deposit Account Liability or any other Obligations under this Section 14.19 shall not be diminished Agreement or rendered unenforceable any other Loan Document or by any winding upfailure, reorganizationneglect or omission on the Administrative Agent’s, arrangement, liquidation, reconstruction any L/C Issuer’s or similar proceeding with respect any Lender’s part to resort to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part Borrowers for payment of the Loans, Notes, Reimbursement Obligations, Hedging Liability, Funds Transfer and Deposit Account Liability or the other Obligations under this Agreement or any other Loan Document or to realize upon or protect any collateral security therefor. Each of the Borrowers’ 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 the Letters of Credit, or for what purposes such proceeds are used, and each of the Borrowers waives notice of requests for extensions of credit issued by, and the Loans and Letters of Credit made to or for the account of, any other Borrower. Each of the Borrowers hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse, or subrogation available to any such Borrower for payment under this Agreement or any other Loan Document against any party liable therefor unless and until all Obligations owing to the Administrative Agent, the L/C Issuers and the Lenders have been paid and satisfied in full and the Commitments have expired or otherwise terminated (it being agreed the foregoing does not restrict reimbursement of expenses between the Borrowers in the ordinary course of business). Such joint and several liability of each of the Borrowers shall also not be impaired or affected by (and each Lender, each L/C Issuer and the Administrative Agent, without notice to anyone, is hereby authorized to make from time to time) any Purchasers sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in, modification or disposition of any collateral security for the Loans, Notes, Reimbursement Obligations, Hedging Liability, Funds Transfer and Deposit Account Liability or the other Obligations under this Agreement or any such successor other Loan Document or assign first of any guaranty thereof. In order to marshal enforce payment of the Loans, Notes, Reimbursement Obligations, Hedging Liability, Funds Transfer and Deposit Account Liability and the other Obligations under this Agreement and the other Loan Documents, foreclose or otherwise realize on any of its or their claims or collateral security therefor, and to exercise the rights granted to the Lenders, the L/C Issuers and/or the Administrative Agent hereunder and thereunder and under applicable law, no Lender, L/C Issuer or 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 the Lenders, the L/C Issuers and/or the Administrative Agent shall have the right to enforce the Loans, Notes, Reimbursement Obligations, Hedging Liability, Funds Transfer and Deposit Account Liability and the other Obligations under this Agreement and the other Loan Documents irrespective of its whether or their rights against not other proceedings or steps are pending seeking resort to or realization upon or from any of the foregoing. Each of the Borrowers hereby expressly waives and surrenders any defense to its joint and several liability on the Loans, Notes, Reimbursement Obligations, Hedging Liability, Funds Transfer and Deposit Account Liability or other Sellers Obligations under this Agreement or to exhaust any remedies available to it or them against other Loan Document based upon any of the other Sellers or to resort to any other source or means of obtaining payment of any foregoing. In furtherance thereof, each of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions Borrowers agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment such obligation is the joint and several obligation of this Section 14.19 shall remain in effect until all each of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been madeBorrowers. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Sparton Corp)

Joint and Several. (a) Each of the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) . Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) . Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) . Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) . Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) . The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) . FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) . Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.. FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

Appears in 1 contract

Samples: Receivables Purchase Agreement (Dean Foods Co)

Joint and Several. (a) Each Borrower hereby unconditionally and irrevocably agrees it is jointly and severally liable to the Administrative Agent and the Lenders for the Obligations arising under this Agreement and the Loan Documents, including those amounts due under Sections 2, 3, 4, 12 and 13. In furtherance thereof, each Borrower agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment, such obligation is the joint and several obligation of each Borrower. Each Borrower acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by the Administrative Agent or the Lenders. Each Borrower’s liability for the Obligations arising under this Agreement and the Loan Documents shall not in any manner be impaired or affected by who receives or uses the proceeds of the Sellers is accepting Loans, Letters of Credit or for what purposes such proceeds are used, and each Borrower waives notice of borrowing requests issued by, and Loans and other extensions of credit made to, other Borrowers. Each Borrower hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Borrower against any party liable for payment under this Agreement and the Loan Documents unless and until the Administrative Agent and the Lenders have been paid in full and all of the Obligations are satisfied and discharged. Each Borrower’s joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance Obligations shall, to the fullest extent permitted by Applicable Law, be the unconditional liability of all such Borrower irrespective of (i) the validity, enforceability, avoidance or subordination of any of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, Obligations or of any demand for other document evidencing all or any payment under this Agreementpart of the Obligations, notice (ii) the absence of any attempt to collect any of the Obligations from any other Loan Party or any security therefor, or the absence of any other action at to enforce the same, (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any time taken or omitted indulgence by the Administrative Agent or any Purchaser under Lender with respect to any provision of any instrument executed by any other Loan Party evidencing or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for securing the payment of any of the Aggregate UnpaidsObligations, the acceptance of or any payment of other agreement now or hereafter executed by any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Loan Party and delivered to Administrative Agent or any Purchaser at any time Lender, (iv) the release or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or releasecompromise, in whole or in part, of any Seller. Without limiting the generality liability of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) The provisions of this Section 14.19 are made Loan Party for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect Obligations, (v) any other remedy. The provisions of this Section 14.19 shall remain increase in effect until all the amount of the Aggregate Unpaids shall have been paid Obligations beyond any limits imposed herein or in full the amount of any interest, fees or otherwise fully satisfied. If at other charges payable in connection therewith, in each case, if consented to by any time, any paymentBorrower, or any part thereofdecrease in the same, made in respect or (vi) any other circumstance that might constitute a legal or equitable discharge or defense of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cashLoan Party. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after After the occurrence and during the continuance of any Amortization Event of Default, Administrative Agent may proceed directly and at once, without notice to any Borrower, against any or Potential Amortization Eventall of Loan Parties to collect and recover all or any part of the Obligations, without first proceeding against any other Loan Party or against any security for the payment or performance of any of the Obligations, and each Borrower waives any provision that might otherwise require Administrative Agent under Applicable Law to pursue or exhaust its remedies against any security for the payment or performance of any of the Obligations or other Loan Party before pursuing such Borrower or its Property. Each Borrower consents and agrees that neither the Administrative Agent or any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or against or in payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash or all of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article IIObligations.

Appears in 1 contract

Samples: Credit Agreement (Hub Group, Inc.)

Joint and Several. (a) Each All of the Sellers is accepting joint Obligations, covenants, representations and several liability hereunder and under the other Transaction Documents warranties of Borrower in consideration any of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids Loan Documents shall be the joint and several obligations Obligations, covenants, representations and warranties of each of entity constituting Borrower, except to the Sellers without preferences or distinction between them. (c) Except as extent otherwise expressly provided in this Agreement, set forth to the contrary. Although Lender and Borrower intend that each Seller hereby waives notice of acceptance of its joint entity constituting Borrower shall be jointly and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand severally liable for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generallyall Obligations, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with that this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment other Loan Documents may be determined to secure indebtedness of any Borrower for which any other Borrower is not primarily liable, each Borrower expressly waives the benefit of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent defenses available to a guarantor, surety, endorser or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Selleraccommodation party dependent on an obligor's character as such. Without limiting the generality of the foregoing, each Seller assents to any such other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids Borrower's liability hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished affected or rendered unenforceable by impaired in any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned way by any of the Sellers. following acts or things (f) The provisions of this Section 14.19 are made for the benefit of the Agentwhich Lender is hereby expressly authorized to do, the Purchasers and their respective successors and assigns, and may be enforced by it omit or them suffer from time to time against without notice to or consent of anyone): (i) any acceptance of collateral security, guarantors, accommodation parties or sureties for any or all Obligations; (ii) any extension or renewal of any Obligations (whether or not for longer than the original period) or any modification of the Sellers as often as occasion therefor may arise and without requirement on the part interest rate, maturity or other terms of the AgentObligations; (iii) any waiver or indulgence granted to any Borrower, and any delay or lack of diligence in the enforcement of any or all Obligations owed by any Borrower; (iv) any full or partial release of, compromise or settlement with, or agreement not to sue, any Purchasers Borrower or the Guarantor xx other person liable on any such successor Obligations; (v) any release, surrender, cancellation or assign first other discharge of any or all Obligations of Borrower or the acceptance of any instrument in renewal or substitution for any instrument evidencing any Obligations; (vi) any failure to marshal obtain collateral security (including rights of setoff) for any of its or their claims Obligations or to exercise any of its see to the proper or their rights against any of the other Sellers sufficient creation and perfection thereof, or to exhaust any remedies available to it or them against any of establish the other Sellers priority thereof, or to resort to preserve, protect, insure, care for, exercise or enforce any collateral security for any Obligations; (vii) any modification, alteration, substitution, exchange, surrender, cancellation, termination, release or other source change, impairment, limitation, loss or means discharge of obtaining payment any collateral security for any Obligations; (viii) any assignment, sale, pledge or other transfer of any of the Aggregate Unpaids hereunder Obligations owed by any Borrower; or (ix) any manner, order or method of application of any payments or credits on any Obligations. Each Borrower waives all rights that it may now have or hereafter acquire, whether by subrogation, contribution, reimbursement, recourse, exoneration, contract or otherwise, to elect recover from any other remedyBorrower or from any property of any other Borrower any sums paid under this Agreement. The provisions No Borrower will exercise or enforce any right of this Section 14.19 shall remain in effect contribution to recover any such sums from any person who is a co-obligor with any Borrower or a guarantor or surety of the Obligations or from any property of any such person or entity until all of the Aggregate Unpaids Obligations shall have been fully paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been madeand discharged. (g) Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Loan and Security Agreement (Cr Resorts Capital S De R L De C V)

Joint and Several. (a) Each of the Sellers is accepting joint and several liability hereunder and under the other Transaction Documents in consideration of the financial accommodations to be provided by the Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the Sellers and in consideration of the undertakings of the other Seller to accept joint and several liability for the Aggregate Unpaids. (b) . Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of each of the Sellers without preferences or distinction between them. (c) . Except as otherwise expressly provided in this Agreement, each Seller hereby waives notice of acceptance of its joint and several liability, notice of the occurrence of any Amortization Event or Potential Amortization Event, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any Seller in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Aggregate Unpaids or the addition, substitution or release, in whole or in part, of any Seller. Without limiting the generality of the foregoing, each Seller assents to any other action or delay in acting or failure to act on the part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of its respective obligations, it being the intention of each Seller that, so long as any of the Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section 14.19 shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Seller under this Section 14.19 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Seller or the Agent or any Purchaser. (d) . Each Seller represents and warrants to the Agent and the Purchasers that such Seller is currently informed of the financial condition of the other Seller and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other Seller’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate Unpaids. (e) . Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute discretion, select the Receivables of any one of the Sellers for sale or application to the Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required to make such selection ratably from the Receivables owned by any of the Sellers. (f) . The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and their respective successors and assigns, and may be enforced by it or them from time to time against any or all of the Sellers as often as occasion therefor may arise and without requirement on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Sellers or to exhaust any remedies available to it or them against any of the other Sellers or to resort to any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency, bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section 14.19 will forthwith be reinstated in effect, as though such payment had not been made. (g) . Each Seller hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Seller with respect to any liability incurred by it hereunder or under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser with respect to any of the Aggregate Unpaids or any collateral security therefor until such time as all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or under any other Transaction Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Seller therefor. (h) . Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the occurrence and during the continuance of any Amortization Event or Potential Amortization Event, such Seller will not demand, xxx sxx for or otherwise attempt to collect any indebtedness of any other Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts to the Agent for application to the Aggregate Unpaids in accordance with Article II.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Dean Foods Co)

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