Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that: (a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a): (i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment; (ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations; (iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine; (iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations; (v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations; (vi) any proceeding against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article X; (vii) the entering into such other transactions or business dealings with any Borrower, any Subsidiary or Affiliate of any Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire; (viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or (ix) all or any combination of any of the actions set forth in this Section 10.02(a). (b) The enforceability and effectiveness of this Article X and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of: (i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations; (ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor; (iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations; (iv) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.03, by reason of the full payment of all Guaranteed Obligations); (v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document; (vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations; (vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person; (viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding; (ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in this Article X or by any other provision of any Loan Document or any omission to take any such action; or (x) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. (c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) all notices of acceptance of this Article X or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 4 contracts
Sources: Credit Agreement (Cboe Global Markets, Inc.), Credit Agreement (Cboe Global Markets, Inc.), Credit Agreement (Cboe Global Markets, Inc.)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations; 364-DAY CREDIT AGREEMENT
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vivii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;; 364-DAY CREDIT AGREEMENT
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.. 364-DAY CREDIT AGREEMENT
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 3 contracts
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.), 364 Day Credit Agreement (Stanley Black & Decker, Inc.), 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 3 contracts
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.), 364 Day Credit Agreement (Stanley Black & Decker, Inc.), Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company agrees Each Guarantor acknowledges that its the obligations undertaken by it under Section 10.01 shall, to this Guaranty involve the fullest extent permitted by applicable law, be primary, guarantee of obligations of Persons other than such Guarantor and that such obligations of each Guarantor are absolute, irrevocable and unconditional under any and all circumstances circumstances. In full recognition and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting furtherance of the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:
(a) The occurrence of any one or more of the following shall not affect Without affecting the enforceability or effectiveness of this Article X Guaranty in accordance with its terms and without affecting, limiting, reducing, discharging or affect, limit, reduce, discharge or terminate terminating the liability of the Companysuch Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, and the Lenders under this Section 10.02(a):Guaranty, the Administrative Agent and the Lenders may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) any modification amend, supplement, modify, extend, renew, waive, accelerate or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other otherwise change in the time for payment or performance of, or the terms of, all or any part of the terms Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Loan Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Loan Document, all or any part of the Guaranteed Obligations or any Loan Document, collateral now or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentin the future serving as security for the Guaranteed Obligations;
(iiiv) accept or receive (including from any other guarantor) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other guarantor);
(vi) release, terminationreconvey, waiverterminate, abandonmentwaive, abandon, allow to lapse or expirationexpire, subordination fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforcement enforce any collateral, security documents or guarantees (including letters of credit or the liability obligations of any other guarantee of guarantor) for or relative to all or any part of the Guaranteed Obligations;
(iiivii) apply any application of collateral or the proceeds of any other collateral or guarantee (including without limitation any letter of credit or the obligations of any other guarantor of all or any part of the Guaranteed Obligationsguarantor) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent or any Lender may in its discretion determine;
(ivviii) release any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligationsguarantor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(vix) any settlementsettle, compromise, release, liquidation liquidate or enforcement, enforce upon such terms and in such manner as the Administrative Agent or the Lenders may determine or as applicable law may dictate, of dictate all or any part of the Guaranteed Obligations or any other collateral on or guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed ObligationsObligations (including with any other guarantor);
(vix) consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower or any proceeding other Person (including any other guarantor);
(xi) proceed against any Borrower the Borrower, such Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any other Person or and exercise the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may or any Lender may, in its discretion, determine, regardless of whether the Administrative Agent without any necessity to proceed upon or the Lenders shall have proceeded against or exhausted exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XGuaranty as to such Guarantor;
(viixii) foreclose upon any deed of trust, mortgage or other instrument creating or granting liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such liens or exercise any right of set-off;
(xiii) obtain the entering appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Lender a party in possession in contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;; and
(viiixv) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) do all or any combination of any of the actions set forth in this Section 10.02(a2.02(a).
(b) The enforceability and effectiveness of this Article X Guaranty and the liability of the Companysuch Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted not prohibited by applicable law any defense now or in the future arisingarising (other than a defense that the Guaranteed Obligations have been paid in full in cash), by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any agreement, security document, guarantee or other agreement or instrument whatsoever relating relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the Borrower, or any other guarantor of all or any part of the Guaranteed Obligations (other than payment in fullincluding any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to of all or any part of the Guaranteed Obligations (other than, subject to Section 10.032.05, by reason of the full payment and performance of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligationsguarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or the Borrower, any other guarantor of all or any part of the Guaranteed Obligations (including any issuer of any Letter of Credit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liabilityliability of such Guarantor under this Guaranty, neither the Administrative Agent and the Lenders nor any Lender being under no any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off failure of the Administrative Agent or any Lender to give notice of sale or other claim disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the Borrower, such Guarantor or any other than Person or any defect in, or any failure by such Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of the Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of such Guarantor or may preclude such Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a defense result of payment such foreclosure, sale or performance by election of remedies, be liable for any deficiency;
(ix) any act or omission of the applicable Borrower) which Administrative Agent, any Lender or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
(x) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation;
(xi) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of such Guarantor under this Guaranty;
(xii) any counterclaim, set-off or other claim which the Borrower or any other guarantor has or claims alleges to have with respect to all or any part of the Guaranteed Obligations;
(viixiii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person.
(xiv) the election by the Administrative Agent or any Lender in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of the Bankruptcy Code;
(viiixv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xvii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviii) the avoidance of any Lien in favor of the Administrative Agent or any Lender for any reason;
(xix) any bankruptcy, insolvency, reorganization, winding-up arrangement, readjustment of debt, liquidation or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixxx) any action taken by the Administrative Agent or any Lender Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 10.02 2.02 or otherwise in this Article X Guaranty or by any other provision of any Loan Document or any omission to take any such action; or
(xxxi) any other circumstance whatsoever (other than payment in full) whatsoever, whether similar or dissimilar to any of the foregoing, that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, including by reason of Sections 2787 to 2855, inclusive, 2899, 3275 and 3433 of the California Civil Code, and any future judicial decisions or legislation or of any comparable provisions of the laws of any other jurisdiction.
(c) To Each Guarantor has been made aware of the fullest extent permitted provisions of California Civil Code Section 2856, has read and understands the provisions of that statute, has been advised by lawits counsel as to the scope, purpose and effect of that statute, and based thereon, and without limiting the Company foregoing waivers, each Guarantor agrees to waive all suretyship rights and defenses described in California Civil Code Section 2856(a). Without limiting any other waivers herein, each Guarantor hereby gives the following waivers pursuant to Sections 2856(c) and 2856(d) of the California Civil Code: “The guarantor waives all rights and defenses that the guarantor may have because the debtor’s debt is secured by real property. This means, among other things:
(1) The creditor may collect from the guarantor without first foreclosing on any real or personal property collateral pledged by the debtor;
(2) If the creditor forecloses on any real property collateral pledged by the debtor:
(A) The amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The creditor may collect from the guarantor even if the creditor, by foreclosing on the real property collateral, has destroyed any right the guarantor may have to collect from the debtor. This is an unconditional and irrevocable waiver of any rights and defenses the guarantor may have because the debtor’s debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure.”
(d) Each Guarantor waives all rights and defenses arising out of an election of remedies by the Administrative Agent and the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Guarantor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the Code of Civil Procedure or otherwise.
(e) Each Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligenceset-offs and counterclaims and all presentments, promptness, presentment, demand demands for payment or performance, notices of nonpayment or nonperformance, protestprotests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred whatsoever with respect to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Guaranty or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Guarantor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure, to the maximum extent not prohibited by applicable law.
(df) any defense based upon any statute or rule Each Guarantor represents and warrants to the Administrative Agent and the Lenders that it has established adequate means of law which provides that obtaining financial and other information pertaining to the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that business, operations and condition (financial and otherwise) of the principal Borrower and its properties on a continuing basis and that such Guarantor is now and will in the future remain fully familiar with the business, operations and condition (efinancial and otherwise) of the Borrower and its properties. Each Guarantor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transaction contemplated by the Loan Documents and that it will in the future remain fully familiar with such transaction and with any defenses new Loan Documents and the transactions contemplated by such Loan Documents. Each Guarantor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or benefits that may be derived from the Lenders (should any such duty exist) to disclose to such or afforded by law which limit any other guarantor any matter of fact or other information related to the liability business, operations or condition (financial or otherwise) of the Borrower or exonerate guarantors its properties or sureties.to any
Appears in 2 contracts
Sources: Guaranty Agreement (West Marine Inc), Guaranty Agreement (West Marine Inc)
Acknowledgments, Waivers and Consents. The Company Visa Inc. agrees that its obligations under Section 10.01 11.1 shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Visa Inc. agrees that:
(a) 11.2.1 The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X XI in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyVisa Inc., or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):11.2.1:
(ia) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment;
(iib) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiic) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivd) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ve) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vif) any proceeding against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XXI;
(viig) the entering into such other transactions or business dealings with any Borrower, any Subsidiary or Affiliate of any Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viiih) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; guaranteed obligation or
(ixi) all or any combination of any of the actions set forth in this Section 10.02(a)11.2.1.
(b) 11.2.2 The enforceability and effectiveness of this Article X XI and the liability of the CompanyVisa Inc., and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X XI shall not be affected, limited, reduced, discharged or terminated, and the Company Visa Inc. hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(ia) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iib) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiic) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivd) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.0311.3, by reason of the full payment of all Guaranteed Obligations);
(ve) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document;
(vif) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(viig) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiih) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixi) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 11.2 or otherwise in this Article X XI or by any other provision of any Loan Document or any omission to take any such action; or
(xj) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) 11.2.3 To the fullest extent permitted by law, the Company Visa Inc. expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) all notices of acceptance of this Article X XI or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Visa Inc.), Five Year Revolving Credit Agreement (Visa Inc.)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party; 364-DAY CREDIT AGREEMENT
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);; 364-DAY CREDIT AGREEMENT
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or 364-DAY CREDIT AGREEMENT nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.), 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company Each Guarantor agrees that its the obligations of such Guarantor under Section 10.01 2.01 hereof shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arisingcircumstances. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:, subject to Section 2.01(g):
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Agreement in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Companysuch Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, Lender under this Section 10.02(a):Agreement:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Documentthe Credit Agreement, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any Guarantor under this Agreement or of either of the Other Guaranties or any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any Other Guarantor or any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) in whole or in part from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or either of the Other Guaranties or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person;
(vii) any proceeding against the Borrower or any Borrower Guarantor or any Other Guarantor or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents Credit Agreement or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XAgreement or any Other Guaranty;
(viiviii) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary subsidiary or Affiliate of the Borrower or any Borrower Other Guarantor or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a2.02(a).
(b) The enforceability and effectiveness of this Article X Agreement and the liability of the CompanyGuarantors, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X Agreement shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document the Credit Agreement or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any Other Guaranty or any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any Borrower Other Guaranty or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.032.03 hereof, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any Other Guarantor or any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Borrower or any other guarantor of all or any Other Guarantor or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability's liability under the Credit Agreement, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Documentthe Credit Agreement;
(vi) any counterclaim, set-off or other claim (other than a defense of payment which the Borrower or performance by the applicable Borrower) which any Borrower Other Guarantor or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 2.02 or otherwise in this Article X Agreement or by any other provision of any Loan Document the Credit Agreement or any omission to take any such action; or
(x) to the fullest extent permitted by applicable law, any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company each Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all set-offs and counterclaims and all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any the Borrower under the Credit Agreement or any Loan Document Other Guaranty or any or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Agreement or of the existence, creation, incurring incurrence or assumption of new or additional Guaranteed Obligations, .
(d) Each Guarantor further waives, to the fullest extent permitted by law, any defense based upon any statute or rule of law right to which provides it may be entitled, including, without limitation:
(i) that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that assets of the principal and (e) Borrower or any defenses or benefits that may Other Guarantor first be derived used, depleted and/or applied in satisfaction of the Borrower's obligations under the Credit Agreement prior to any amounts being claimed from or afforded paid by law which limit any Guarantor;
(ii) to require that the liability of Borrower be sued and all claims against the Borrower be completed prior to an action or exonerate guarantors proceeding being initiated against any Guarantor or suretiesany Other Guarantor; and
(iii) to have its obligations hereunder be divided among the Guarantors and the Other Guarantors, such that any Guarantor's obligation would be less than the full amount claimed.
Appears in 2 contracts
Sources: Guaranty (Memc Electronic Materials Inc), Guaranty (Memc Electronic Materials Inc)
Acknowledgments, Waivers and Consents. The Company Guarantor agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, this Guaranty shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein herein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Guarantor agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Guaranty in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Guaranty:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee guaranty of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee guaranty (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee guaranty of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XGuaranty;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a2(a).
(b) The enforceability and effectiveness of this Article X Guaranty and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee guaranty (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.033, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Guarantor may have with respect to all or any part of any obligations owed to the Guarantor by the Administrative Agent or any Lender (other than, without prejudice to Section 3, any counterclaim or other claim that the amount of the Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by under this Section 10.02 or otherwise in this Article X Guaranty or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee guaranty of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Guaranty or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 2 contracts
Sources: Credit Agreement (Stanley Black & Decker, Inc.), Subsidiary Guaranty (Black & Decker Corp)
Acknowledgments, Waivers and Consents. The Company Guarantor agrees that its obligations under Section 10.01 clause (a) above shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Guarantor agrees that:
(ai) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Section 9 in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(asubection 9(b):
(iA) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(iiB) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiiC) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivD) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;; CREDIT AGREEMENT
(vE) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(viF) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person or any disposition of any shares of the Guarantor;
(G) any proceeding against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XSection 9;
(viiH) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ixI) all or any combination of any of the actions set forth in this Section 10.02(asubsection 9(b)(i).
(bii) The enforceability and effectiveness of this Article X Section 9 and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X Section 9 shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(iA) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iiB) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiiC) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivD) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.03subsection 9(c), by reason of the full payment of all Guaranteed Obligations);
(vE) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Document;
(viF) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(viiG) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiiH) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixI) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 subsection 9(b) or otherwise in this Article X Section 9 or by any other provision of any Loan Document or any omission to take any such action; or
(xJ) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(ciii) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any the Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Section 9 or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.. CREDIT AGREEMENT
Appears in 1 contract
Sources: Credit Agreement (Mastercard Inc)
Acknowledgments, Waivers and Consents. The Company Guarantor agrees that its obligations under Section 10.01 clause (a) above shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Guarantor agrees that:
(ai) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Section 9 in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(asubection 9(b):
(iA) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(iiB) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiiC) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivD) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(vE) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations; CREDIT AGREEMENT
(F) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person or any disposition of any shares of the Guarantor;
(viG) any proceeding against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XSection 9;
(viiH) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ixI) all or any combination of any of the actions set forth in this Section 10.02(asubsection 9(b)(i).
(bii) The enforceability and effectiveness of this Article X Section 9 and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X Section 9 shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(iA) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iiB) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiiC) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivD) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.03subsection 9(c), by reason of the full payment of all Guaranteed Obligations);; CREDIT AGREEMENT
(vE) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s 's liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Document;
(viF) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(viiG) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiiH) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixI) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 subsection 9(b) or otherwise in this Article X Section 9 or by any other provision of any Loan Document or any omission to take any such action; or
(xJ) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(ciii) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any the Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Section 9 or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: Credit Agreement (Mastercard Inc)
Acknowledgments, Waivers and Consents. The Company Guarantor agrees that its obligations under Section 10.01 2 of this Guaranty shall, to the fullest extent permitted by applicable law, be primary, absolute, unconditional, and irrevocable and unconditional under any and all circumstances and that the guaranty therein herein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Guarantor agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Guaranty in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any LenderGuarantor, under this Section 10.02(a):Guaranty:
(i) any restatement, modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance performance, of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any CommitmentObligations;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee guaranty (including including, without limitation limitation, the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determineObligations;
(iv) any release of any other Person (including including, without limitation limitation, any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Company or any disposition of any shares of the Company;
(vii) any proceeding against any Borrower the Company or any other guarantor of with respect to all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article X;
(vii) the entering into such other transactions or business dealings with any Borrower, any Subsidiary or Affiliate of any Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed ObligationNotes; or
(ixviii) all or any combination of any of the actions set forth in this Section 10.02(a)Guaranty.
(b) The enforceability and effectiveness of this Article X Guaranty and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under this Article X Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document Obligations or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed ObligationsNote Purchase Agreement;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in fullthe defense of performance), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Borrower Company or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;; or
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiiv) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in this Article X or by any other provision of any Loan Document or any omission to take any such action; or
(x) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorCompany.
(c) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the LendersHolders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender Holder exhaust any right, power or remedy or proceed against any Borrower the Company under any Loan Document or other agreement or instrument referred to herein or thereinNote, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Guaranty or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company Visa Inc. agrees that its obligations under Section 10.01 11.1 shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Visa Inc. agrees that:
(a) 11.2.1 . The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X XI in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyVisa Inc., or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):11.2.1:
(ia) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment;
(iib) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiic) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivd) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ve) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vif) any proceeding against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article X;XI; 71 Five-Year Revolving Credit Agreement
(viig) the entering into such other transactions or business dealings with any Borrower, any Subsidiary or Affiliate of any Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ixh) all or any combination of any of the actions set forth in this Section 10.02(a)11.2.1.
(b) The enforceability and effectiveness of this Article X and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in this Article X or by any other provision of any Loan Document or any omission to take any such action; or
(x) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) all notices of acceptance of this Article X or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company Visa Inc. agrees that its obligations under Section 10.01 11.1 shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Visa Inc. agrees that:
(a) 11.2.1 The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X XI in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyVisa Inc., or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):11.2.1:
(ia) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment;
(iib) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiic) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivd) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ve) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vif) any proceeding against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XXI;
(viig) the entering into such other transactions or business dealings with any Borrower, any Subsidiary or Affiliate of any Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ixh) all or any combination of any of the actions set forth in this Section 10.02(a)11.2.1.
(b) 11.2.2 The enforceability and effectiveness of this Article X XI and the liability of the CompanyVisa Inc., and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X XI shall not be affected, limited, reduced, discharged or 79 364-Day Revolving Credit Agreement terminated, and the Company Visa Inc. hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(ia) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iib) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiic) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivd) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.0311.3, by reason of the full payment of all Guaranteed Obligations);
(ve) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document;
(vif) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(viig) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiih) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixi) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 11.2 or otherwise in this Article X XI or by any other provision of any Loan Document or any omission to take any such action; oror 80 364-Day Revolving Credit Agreement
(xj) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) 11.2.3 To the fullest extent permitted by law, the Company Visa Inc. expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) all notices of acceptance of this Article X XI or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company Each Guarantor agrees that its the obligations of such Guarantor under Section 10.01 7.01 hereof shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arisingcircumstances. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:
(a) The occurrence of any one or more of the following shall not not, to the maximum extent permitted under applicable law, affect the enforceability or effectiveness of this Article X Section 7 in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Companysuch Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent, the Collateral and Paying Agent or any Lender, Lender under this Section 10.02(a):7:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any Guarantor under this Agreement or of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation any letter of credit or the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determineObligations;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent and the Collateral and Paying Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any proceeding against any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other guarantor Person or any disposition of any shares of any Guarantor;
(vii) any proceeding against the Borrower or any Guarantor of (including without limitation any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent, the Collateral and Paying Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent and the Collateral and Paying Agent may determine, regardless of whether the Administrative Agent, the Collateral and Paying Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XAgreement;
(viiviii) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor Guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent, the Collateral and Paying Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a7.02(a).
(b) The enforceability and effectiveness of this Article X Agreement and the liability of the CompanyGuarantors, and the rights, remedies, powers and privileges of the Administrative Agent, the Collateral and Paying Agent and the Lenders under this Article X Agreement shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor Guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.037.03 hereof, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent, the Collateral and Paying Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations (including any issuer of any letter of credit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability's liability under this Agreement, the Administrative Agent, the Collateral and Paying Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Borrower or any other guarantor Guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(vii) any failure of the Administrative Agent, the Collateral and Paying Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, concurso mercantil, winding-up or adjustment of debts, or appointment of a custodian, interventor, conciliador, sindico, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent, the Collateral and Paying Agent or any Lender that is authorized by this Section 10.02 7.02 or otherwise in this Article X Agreement or by any other provision of any Loan Document or any omission to take any such action; or
(x) to the fullest extent permitted by applicable law, any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company each Guarantor expressly waives, for the benefit of the Administrative Agent, the Collateral and Paying Agent and the Lenders, (a) all set-offs and counterclaims and all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoeverwhatsoever (other than the written demand for payment pursuant to Section 7.01 hereof), (b) and any requirement that the Administrative Agent, the Collateral and Paying Agent or any Lender exhaust any right, power or remedy or proceed against any the Borrower under this Agreement, any Note or any other Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Guarantor further expressly waives the benefit of any and all statutes of limitation, to the fullest extent permitted by applicable law.
(d) Each Guarantor further waives, to the fullest extent permitted by law, any defense based upon any statute or rule of law right to which provides it may be entitled, including, without limitation:
(i) that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that assets of the principal and (e) Borrower first be used, depleted and/or applied in satisfaction of the Borrower's obligations under this Agreement prior to any defenses or benefits that may be derived amounts being claimed from or afforded paid by law which limit any Guarantor;
(ii) to require that the liability Borrower be sued and all claims against the Borrower be completed prior to an action or proceeding being initiated against such Guarantor;
(iii) to have its obligations hereunder be divided among the Guarantors, such that each Guarantor's obligation would be less than the full amount claimed; and
(iv) to the extent applicable, under Articles 2814, 2815, 2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2842, 2845 and 2846 of or exonerate guarantors or suretiesthe Federal Civil Code and the correlative rights of the Civil Codes of the Federal District and the States of Mexico.
Appears in 1 contract
Sources: Loan Agreement (Vitro Sa De Cv)
Acknowledgments, Waivers and Consents. The Company Each Guarantor agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Companysuch Guarantor, or the rights, 364-DAY CREDIT AGREEMENT remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).. 364-DAY CREDIT AGREEMENT
(b) The enforceability and effectiveness of this Article X IX and the liability of the Companysuch Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which such Guarantor may have with respect to all or any part of any obligations owed to such Guarantor by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings 364-DAY CREDIT AGREEMENT commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company each Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company Guarantor agrees that its the obligations of the Guarantor under Section 10.01 2.01 hereof shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arisingcircumstances. Without limiting the foregoing, the Guarantor agrees that, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Agreement in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, Senior Lenders under this Section 10.02(a):Agreement:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or thereto provided that the obligations of the Guarantor hereunder shall not be increased by reason of any modification or amendment after the date hereof of any Commitmentthe terms of the Obligations if the effect of such modification or amendment is to increase (other than by means of acceleration) the amount of the Obligations then due and payable to the Senior Lenders and provided, further that in the event that the Obligations are increased in the manner described in the foregoing clause, the Senior Lenders shall not make a claim against the Guarantor under this Agreement for the amount by which such Obligations have been increased;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed ObligationsGuarantor under this Agreement;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(viv) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent Senior Lenders may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(v) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person or any disposition of any shares of the Guarantor;
(vi) any proceeding against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Senior Lenders under the CTR Loan Documents or otherwise in such order and such manner as the Administrative Agent Senior Lenders may determine, regardless of whether the Administrative Agent or the Senior Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XAgreement;
(vii) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender Senior Lenders may desire;
(viii) any law lien or regulation security interest granted to, or in favor of, the Senior Lenders as security for any of any jurisdiction the Guaranteed Obligations shall be released or any other event affecting any term of a Guaranteed Obligationshall fail to be perfected; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a2.02(a).
(b) The enforceability and effectiveness of this Article X Agreement and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Senior Lenders under this Article X Agreement shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any CTR Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than than, subject to Section 2.03 hereof, by reason of the full and final payment in fullof all Guaranteed Obligations), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorObligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.032.03 hereof, by reason of the full and final payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender Senior Lenders to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations)Person, to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it they may have against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations (including any issuer of any letter of credit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability's liability under this Agreement, the Administrative Agent and the Senior Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Financing Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 2.03 hereof, by reason of the full and final payment of all Guaranteed Obligations);
(vii) any failure of the Administrative Agent or any Lender Senior Lenders or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator liquidator, trustee or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender Senior Lenders that is authorized by this Section 10.02 2.02 or otherwise in this Article X Agreement or by any other provision of any Loan Document or any omission to take any such action; or
(x) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor (other than, subject to Section 2.03 hereof, by reason of the full and final payment of all Guaranteed Obligations).
(c) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Senior Lenders, (a) all set-offs and counterclaims and all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoeverwhatsoever (other than the written demand for payment pursuant to Section 2.01 hereof), (b) and any requirement that the Administrative Agent or any Lender Senior Lenders exhaust any right, power or remedy or proceed against any the Borrower under any Loan Document the Financing Documents or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed ObligationsObligations provided that the waiver of set-off set out in this clause (c) shall apply, only with respect to the Senior Lenders' rights and remedies under this Agreement, up to the maximum amount of recovery of the CTR Guarantee Maximum. The Guarantor further expressly waives the benefit of any and all statutes of limitation, to the fullest extent permitted by applicable law.
(d) The Guarantor further waives, to the fullest extent permitted by law, any defense based upon any statute or rule of law right to which provides it may be entitled, including, without limitation:
(i) that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that assets of the principal and (e) Borrower first be used, depleted and/or applied in satisfaction of the Borrower's obligations under the CTR Loan Documents prior to any defenses or benefits that may be derived amounts being claimed from or afforded paid by law which limit the liability of Guarantor; and
(ii) to require that the Borrower be sued and all claims against the Borrower be completed prior to an action or exonerate guarantors or suretiesproceeding being initiated against the Guarantor.
Appears in 1 contract
Sources: Guaranty Agreement (Sr Telecom Inc)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan 364-DAY CREDIT AGREEMENT Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any 364-DAY CREDIT AGREEMENT other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.. 364-DAY CREDIT AGREEMENT
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company agrees Guarantor acknowledges that its the obligations undertaken by it under Section 10.01 shallthis Guaranty involve the guarantee of obligations of Persons other than the Guarantor and that such obligations of the Guarantor are, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances circumstances. In full recognition and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting furtherance of the foregoing, the Guarantor agrees, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect Without affecting the enforceability or effectiveness of this Article X Guaranty in accordance with its terms and without affecting, limiting, reducing, discharging or affect, limit, reduce, discharge or terminate terminating the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, and the Lenders under this Section 10.02(a):Guaranty, the Administrative Agent and the Lenders may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) any modification amend, supplement, modify, extend, renew, waive, accelerate or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other otherwise change in the time for payment or performance of of, or the terms of of, all or any part of the Guaranteed Guarantied Obligations (including any increase or any Loan Documentdecrease in the principal portion of, or any other agreement rate or instrument whatsoever relating theretorates of interest on, or any modification of any Commitment;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Guarantied Obligations);
(iiiii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all Loan Document or any part of the Guaranteed Obligations) to all agreement, security document, guarantee, approval, consent or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor instrument with respect to all or any part of the Guaranteed Guarantied Obligations, any Loan Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Loan Document, all or any part of the Guarantied Obligations or any collateral now or in the future serving as security for the Guarantied Obligations;
(iv) accept or receive (including from any other guarantor) partial payments or performance on the Guarantied Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guarantied Obligations (including from any other guarantor);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the Guarantied Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other guarantor) to all or any part of the Guarantied Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determine;
(viii) release any Person (including any other guarantor) from any personal liability with respect to all or any part of the Guaranteed Guarantied Obligations;
(vix) any settlementsettle, compromise, release, liquidation liquidate or enforcement, enforce upon such terms and in such manner as the Administrative Agent or the Lenders may determine or as applicable law may dictate, of dictate all or any part of the Guaranteed Guarantied Obligations or any other collateral on or guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed ObligationsGuarantied Obligations (including with any other guarantor);
(vix) consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower or any proceeding other Person (including any other guarantor);
(xi) proceed against any Borrower the Borrower, the Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Guarantied Obligations or any collateral provided by any other Person or and exercise the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may or any Lender may, in its discretion, determine, regardless of whether the Administrative Agent without any necessity to proceed upon or the Lenders shall have proceeded against or exhausted exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XGuaranty as to any guarantor;
(viixii) foreclose upon any deed of trust, mortgage or other instrument creating or granting liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such liens or exercise any right of set-off;
(xiii) obtain the entering appointment of a receiver with respect to any collateral for all or any part of the Guarantied Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Lender a party in possession in contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Guarantied Obligations as the Administrative Agent or any Lender may desire;; and
(viiixv) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) do all or any combination of any of the actions set forth in this Section 10.02(a2.02(a).
(b) The To the fullest extent permitted by law, the enforceability and effectiveness of this Article X Guaranty and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Guarantied Obligations, any Loan Document or any agreement, security document, guarantee or other agreement or instrument whatsoever relating relative to all or any part of the Guaranteed Guarantied Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Guarantied Obligations of the Borrower, or any other guarantor of all or any part of the Guarantied Obligations (other than payment in fullincluding any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Guarantied Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of for all or any part of the Guaranteed Guarantied Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed ObligationsGuarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the "Credit Agreement" or a "Parity Debt Agreement" under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
(iv) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to of all or any part of the Guaranteed Guarantied Obligations (other than, subject to Section 10.032.05, by reason of the full payment and performance of all Guaranteed Guarantied Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligationsguarantor), to exhaust any collateral for all or any part of the Guaranteed Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or the Borrower, any other guarantor of all or any part of the Guaranteed Guarantied Obligations (including any issuer of any letter of credit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liabilitythe Guarantor's liability under this Guaranty, neither the Administrative Agent and the Lenders nor any Lender being under no any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Guarantied Obligations may be due and payable and that any the Borrower may be in default of its their obligations under any Loan Document;
(vi) any counterclaim, set-off failure of the Administrative Agent or any Lender to give notice of sale or other claim disposition of any collateral (other than a defense including any notice of payment any judicial or performance by the applicable Borrower) which nonjudicial foreclosure or sale of any Borrower or any other guarantor of interest in real property serving as collateral for all or any part of the Guaranteed Obligations has or claims with respect to Guarantied Obligations) for all or any part of the Guaranteed ObligationsGuarantied Obligations to the Borrower, the Guarantor or any other Person or any defect in, or any failure by the Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of the Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guarantied Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude the Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any benefits the Borrower, the Guarantor or any other guarantor may otherwise derive from Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure or any comparable provisions of the laws of any other jurisdiction;
(x) any act or omission of the Administrative Agent, any Lender or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guarantied Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Obligations by operation of law or otherwise;
(xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation;
(xii) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty;
(xiii) any counterclaim, set-off or other claim which the Borrower or any other guarantor has or alleges to have with respect to all or any part of the Guarantied Obligations;
(xiv) any failure of the Administrative Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiixv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xvii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviii) the avoidance of any Lien in favor of the Administrative Agent or any Lender for any reason;
(xix) any bankruptcy, insolvency, reorganization, winding-up arrangement, readjustment of debt, liquidation or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Guarantied Obligations (or any interest on all or any part of the Guaranteed Guarantied Obligations) in or as a result of any such proceeding;
(ixxx) any action taken by the Administrative Agent or any Lender Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 10.02 2.02 or otherwise in this Article X Guaranty or by any other provision of any Loan Document or any omission to take any such action; or
(xxxi) any other circumstance whatsoever (other than payment in full) whatsoever, whether similar or dissimilar to any of the foregoing, that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, including by reason of California Civil Code Sections 2787 to 2855, inclusive, and California Code of Civil Procedure Sections 580a, 580b, 580d or 726, and all successor sections and any future judicial decisions or legislation or of any comparable provisions of the laws of any other jurisdiction.
(c) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligenceset-offs and counterclaims and all presentments, promptness, presentment, demand demands for payment or performance, notices of nonpayment or nonperformance, protestprotests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that whatsoever with respect to the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Guarantied Obligations, (c) and all notices of acceptance of this Article X Guaranty or of the existence, creation, incurring or assumption of new or additional Guaranteed Guarantied Obligations. To the fullest extent permitted by law, the Guarantor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure.
(d) The Guarantor represents and warrants to the Administrative Agent and the Lenders that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Borrower and its properties on a continuing basis and that the Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower and its properties. The Guarantor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transactions contemplated by the Loan Documents and that it will in the future remain fully familiar with such transactions and with any defense based upon new Loan Documents and the transactions contemplated by such Loan Documents. The Guarantor hereby expressly waives and relinquishes any statute duty on the part of the Administrative Agent or rule the Lenders (should any such duty exist) to disclose to the Guarantor or any other guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Borrower or its properties or to any Loan Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Document, whether now or in the future known by the Administrative Agent or any Lender.
(e) The Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty and that, to the fullest extent permitted by law, its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which provides conflict with the terms of this Guaranty.
(f) The Guarantor acknowledges that it benefits from the obligation extensions of a surety must credit made and to be neither larger in amount nor in made by the Lenders to the Borrower under the Credit Agreement and the other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or suretiesLoan Documents.
Appears in 1 contract
Sources: Guaranty Agreement (Cornerstone Propane Partners Lp)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, 364-DAY CREDIT AGREEMENT limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law ; or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or364-DAY CREDIT AGREEMENT
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative 364-DAY CREDIT AGREEMENT Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company Each Guarantor agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Companysuch Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Companysuch Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which such Guarantor may have with respect to all or any part of any obligations owed to such Guarantor by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company each Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;; AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;guarantor of all or any part of the Guaranteed Obligations; AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;; AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company Each Guarantor agrees that its the obligations of such Guarantor under Section 10.01 2.01 hereof shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Agreement in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Companysuch Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any LenderBank, under this Section 10.02(a):Agreement:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any Guarantor under this Agreement or of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation any letter of credit or the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;; Guaranty Agreement
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person or any disposition of any shares of any Guarantor;
(vii) any proceeding against any the Borrower or any other guarantor of (including without limitation any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders Banks under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders Banks shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XAgreement;
(viiviii) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender Bank may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a2.02(a).
(b) The enforceability and effectiveness of this Article X Agreement and the liability of the CompanyGuarantors, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Banks under this Article X Agreement shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor Guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.032.03 hereof, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in this Article X or by any other provision of any Loan Document or any omission to take any such action; or
(x) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) all notices of acceptance of this Article X or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company Guarantor agrees that its obligations under Section 10.01 clause (a) above shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Guarantor agrees that:
(ai) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Section 9 in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(asubection 9(b):
(iA) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(iiB) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiiC) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivD) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(vE) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(viF) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person or any disposition of any shares of the Guarantor; CREDIT AGREEMENT
(G) any proceeding against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XSection 9;
(viiH) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ixI) all or any combination of any of the actions set forth in this Section 10.02(asubsection 9(b)(i).
(bii) The enforceability and effectiveness of this Article X Section 9 and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X Section 9 shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(iA) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iiB) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiiC) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivD) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.03subsection 9(c), by reason of the full payment of all Guaranteed Obligations);
(vE) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any CREDIT AGREEMENT action whatsoever to mitigate or reduce such or any other Person’s 's liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Document;
(viF) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(viiG) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiiH) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixI) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 subsection 9(b) or otherwise in this Article X Section 9 or by any other provision of any Loan Document or any omission to take any such action; or
(xJ) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(ciii) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any the Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Section 9 or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: Credit Agreement (Mastercard Inc)
Acknowledgments, Waivers and Consents. The Company Each Guarantor agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Companysuch Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment;the Commitments; Table of Contents
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Companysuch Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:: Table of Contents
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which such Guarantor may have with respect to all or any part of any obligations owed to such Guarantor by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;; Table of Contents
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company each Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.. AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
Appears in 1 contract
Sources: Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company Guarantor agrees that its the obligations of the Guarantor under Section 10.01 2.01 hereof shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arisingcircumstances. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Guarantor agrees that:, subject to Section 2.01(g):
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Agreement in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, Lender under this Section 10.02(a):Agreement:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Documentthe Credit Agreement, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of the Guarantor under this Agreement or of either of the Other Guaranties or any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any Other Guarantor or any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) in whole or in part from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or either of the Other Guaranties or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person;
(vii) any proceeding against the Borrower or the Guarantor or any Borrower Other Guarantor or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents Credit Agreement or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XAgreement or any Other Guaranty;
(viiviii) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary subsidiary or Affiliate of the Borrower or any Borrower Other Guarantor or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a2.02(a).
(b) The enforceability and effectiveness of this Article X Agreement and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X Agreement shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document the Credit Agreement or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any Other Guaranty or any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any Borrower Other Guaranty or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.032.03 hereof, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any Other Guarantor or any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Borrower or any other guarantor of all or any Other Guarantor or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability's liability under the Credit Agreement, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Documentthe Credit Agreement;
(vi) any counterclaim, set-off or other claim (other than a defense of payment which the Borrower or performance by the applicable Borrower) which any Borrower Other Guarantor or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 2.02 or otherwise in this Article X Agreement or by any other provision of any Loan Document the Credit Agreement or any omission to take any such action; or
(x) to the fullest extent permitted by applicable law, any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all set-offs and counterclaims and all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any the Borrower under the Credit Agreement or any Loan Document Other Guaranty or any or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Agreement or of the existence, creation, incurring incurrence or assumption of new or additional Guaranteed Obligations, .
(d) The Guarantor further waives, to the fullest extent permitted by law, any defense based upon any statute or rule of law right to which provides it may be entitled, including, without limitation:
(i) that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that assets of the principal and (e) Borrower or any defenses or benefits that may Other Guarantor first be derived used, depleted and/or applied in satisfaction of the Borrower's obligations under the Credit Agreement prior to any amounts being claimed from or afforded paid by law which limit the liability of Guarantor;
(ii) to require that the Borrower be sued and all claims against the Borrower be completed prior to an action or exonerate guarantors proceeding being initiated against the Guarantor or suretiesany Other Guarantor; and
(iii) to have its obligations hereunder be divided among the Guarantor and the Other Guarantors, such that the Guarantor's obligation would be less than the full amount claimed.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company agrees Guarantor acknowledges that its the obligations undertaken by it under Section 10.01 shallthis Guaranty involve the guarantee of obligations of Persons other than the Guarantor and that such obligations of the Guarantor are, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances circumstances. In full recognition and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting furtherance of the foregoing, the Guarantor agrees, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect Without affecting the enforceability or effectiveness of this Article X Guaranty in accordance with its terms and without affecting, limiting, reducing, discharging or affect, limit, reduce, discharge or terminate terminating the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, and the Lenders under this Section 10.02(a):Guaranty, the Administrative Agent and the Lenders may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) any modification amend, supplement, modify, extend, renew, waive, accelerate or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other otherwise change in the time for payment or performance of of, or the terms of of, all or any part of the Guaranteed Guarantied Obligations (including any increase or any Loan Documentdecrease in the principal portion of, or any other agreement rate or instrument whatsoever relating theretorates of interest on, or any modification of any Commitment;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Guarantied Obligations);
(iiiii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all Loan Document or any part of the Guaranteed Obligations) to all agreement, security document, guarantee, approval, consent or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor instrument with respect to all or any part of the Guaranteed Guarantied Obligations, any Loan Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Loan Document, all or any part of the Guarantied Obligations or any collateral now or in the future serving as security for the Guarantied Obligations;
(iv) accept or receive (including from any other guarantor) partial payments or performance on the Guarantied Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guarantied Obligations (including from any other guarantor);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the Guarantied Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other guarantor) to all or any part of the Guarantied Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determine;
(viii) release any Person (including any other guarantor) from any personal liability with respect to all or any part of the Guaranteed Guarantied Obligations;
(vix) any settlementsettle, compromise, release, liquidation liquidate or enforcement, enforce upon such terms and in such manner as the Administrative Agent or the Lenders may determine or as applicable law may dictate, of dictate all or any part of the Guaranteed Guarantied Obligations or any other collateral on or guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed ObligationsGuarantied Obligations (including with any other guarantor);
(vix) consent to the merger or consolidation of, the state of subsantial assets by, or other restructuring or termination of the existence of the Borrower or any proceeding other Person (including any other guarantor);
(xi) proceed against any Borrower the Borrower, the Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Guarantied Obligations or any collateral provided by any other Person or and exercise the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may or any Lender may, in its discretion, determine, regardless of whether the Administrative Agent without any necessity to proceed upon or the Lenders shall have proceeded against or exhausted exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XGuaranty as to any guarantor;
(viixii) foreclose upon any deed of trust, mortgage or other instrument creating or granting liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such liens or exercise any right of set–off;
(xiii) obtain the entering appointment of a receiver with respect to any collateral for all or any part of the Guarantied Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Lender a party in possession in contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Guarantied Obligations as the Administrative Agent or any Lender may desire;; and
(viiixv) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) do all or any combination of any of the actions set forth in this Section 10.02(a2.02(a).
(b) The To the fullest extent permitted by law, the enforceability and effectiveness of this Article X Guaranty and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Guarantied Obligations, any Loan Document or any agreement, security document, guarantee or other agreement or instrument whatsoever relating relative to all or any part of the Guaranteed Guarantied Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Guarantied Obligations of the Borrower, or any other guarantor of all or any part of the Guarantied Obligations (other than payment in fullincluding any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Guarantied Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of for all or any part of the Guaranteed Guarantied Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed ObligationsGuarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
(iv) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to of all or any part of the Guaranteed Guarantied Obligations (other than, subject to Section 10.032.05, by reason of the full payment and performance of all Guaranteed Guarantied Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligationsguarantor), to exhaust any collateral for all or any part of the Guaranteed Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or the Borrower, any other guarantor of all or any part of the Guaranteed Guarantied Obligations (including any issuer of any letter of credit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other Personthe Guarantor’s liabilityliability under this Guaranty, neither the Administrative Agent and the Lenders nor any Lender being under no any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Guarantied Obligations may be due and payable and that any the Borrower may be in default of its their obligations under any Loan Document;
(vi) any counterclaim, set-off failure of the Administrative Agent or any Lender to give notice of sale or other claim disposition of any collateral (other than a defense including any notice of payment any judicial or performance by the applicable Borrower) which nonjudicial foreclosure or sale of any Borrower or any other guarantor of interest in real property serving as collateral for all or any part of the Guaranteed Obligations has or claims with respect to Guarantied Obligations) for all or any part of the Guaranteed ObligationsGuarantied Obligations to the Borrower, the Guarantor or any other Person or any defect in, or any failure by the Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of the Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guarantied Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude the Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any benefits the Borrower, the Guarantor or any other guarantor may otherwise derive from Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure or any comparable provisions of the laws of any other jurisdiction;
(x) any act or omission of the Administrative Agent, any Lender or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guarantied Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Obligations by operation of law or otherwise;
(xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation;
(xii) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty;
(xiii) any counterclaim, set–off or other claim which the Borrower or any other guarantor has or alleges to have with respect to all or any part of the Guarantied Obligations;
(xiv) any failure of the Administrative Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiixv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xvii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviii) the avoidance of any Lien in favor of the Administrative Agent or any Lender for any reason;
(xix) any bankruptcy, insolvency, reorganization, winding-up arrangement, readjustment of debt, liquidation or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Guarantied Obligations (or any interest on all or any part of the Guaranteed Guarantied Obligations) in or as a result of any such proceeding;
(ixxx) any action taken by the Administrative Agent or any Lender Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 10.02 2.02 or otherwise in this Article X Guaranty or by any other provision of any Loan Document or any omission to take any such action; or
(xxxi) any other circumstance whatsoever (other than payment in full) whatsoever, whether similar or dissimilar to any of the foregoing, that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, including by reason of California Civil Code Sections 2787 to 2855, inclusive, and California Code of Civil Procedure Sections 580a, 580b, 580d or 726, and all successor sections and any future judicial decisions or legislation or of any comparable provisions of the laws of any other jurisdiction.
(c) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligenceset-offs and counterclaims and all presentments, promptness, presentment, demand demands for payment or performance, notices of nonpayment or nonperformance, protestprotests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that whatsoever with respect to the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Guarantied Obligations, (c) and all notices of acceptance of this Article X Guaranty or of the existence, creation, incurring or assumption of new or additional Guaranteed Guarantied Obligations. To the fullest extent permitted by law, the Guarantor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure.
(d) The Guarantor represents and warrants to the Administrative Agent and the Lenders that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Borrower and its properties on a continuing basis and that the Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower and its properties. The Guarantor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transactions contemplated by the Loan Documents and that it will in the future remain fully familiar with such transactions and with any defense based upon new Loan Documents and the transactions contemplated by such Loan Documents. The Guarantor hereby expressly waives and relinquishes any statute duty on the part of the Administrative Agent or rule the Lenders (should any such duty exist) to disclose to the Guarantor or any other guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Borrower or its properties or to any Loan Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Document, whether now or in the future known by the Administrative Agent or any Lender.
(e) The Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty and that, to the fullest extent permitted by law, its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which provides conflict with the terms of this Guaranty.
(f) The Guarantor acknowledges that it benefits from the obligation extensions of a surety must credit made and to be neither larger in amount nor in made by the Lenders to the Borrower under the Credit Agreement and the other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or suretiesLoan Documents.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment;the Commitments; 364-DAY CREDIT AGREEMENT
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).. 364-DAY CREDIT AGREEMENT
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full); 364-DAY CREDIT AGREEMENT
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law ; or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; orAMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;; CREDIT AGREEMENT
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of any Designated Borrower or any other Person or any disposition of any shares of the Company or any Designated Borrower;
(vii) any proceeding against any Designated Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Designated Borrower, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Designated Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Designated Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any such Designated Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any such Designated Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Designated Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction of Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for CREDIT AGREEMENT payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Designated Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: Credit Agreement (Stanley Works)
Acknowledgments, Waivers and Consents. The Company Visa Inc. agrees that its obligations under Section 10.01 11.1 shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Visa Inc. agrees that:
(a) 11.2.1 The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X XI in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyVisa Inc., or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):11.2.1:
(ia) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment;
(iib) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiic) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivd) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;; 2315953_6.doc 81 364-Day Revolving Credit Agreement
(ve) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vif) any proceeding against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XXI;
(viig) the entering into such other transactions or business dealings with any Borrower, any Subsidiary or Affiliate of any Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ixh) all or any combination of any of the actions set forth in this Section 10.02(a)11.2.1.
(b) 11.2.2 The enforceability and effectiveness of this Article X XI and the liability of the CompanyVisa Inc., and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X XI shall not be affected, limited, reduced, discharged or terminated, and the Company Visa Inc. hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(ia) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iib) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiic) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivd) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.0311.3, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in this Article X or by any other provision of any Loan Document or any omission to take any such action; or
(x) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) all notices of acceptance of this Article X or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company Each Guarantor agrees that its the obligations of such Guarantor under Section 10.01 2.01 hereof shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arisingcircumstances. Without limiting the foregoing, each Guarantor agrees that, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Agreement in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Companyany Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, Bank under this Section 10.02(a):Agreement:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any Guarantor under this Agreement or of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation any letter of credit or the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person or any disposition of any shares of any Guarantor;
(vii) any proceeding against any the Borrower or any other guarantor of (including without limitation any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders Banks under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders Banks shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XAgreement;
(viiviii) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender Bank may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a2.02(a).
(b) The enforceability and effectiveness of this Article X Agreement and the liability of the Companyeach Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Banks under this Article X Agreement shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than than, subject to Section 2.03 hereof, by reason of the full and final payment in fullof all Guaranteed Obligations), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.032.03 hereof, by reason of the full and final payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender Bank to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations (including any issuer of any letter of credit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liabilityliability under this Agreement, the Administrative Agent and the Lenders Banks being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 2.03 hereof, by reason of the full and final payment of all Guaranteed Obligations);
(vii) any failure of the Administrative Agent or any Lender Bank or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, síndico, conciliador, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender Bank that is authorized by this Section 10.02 2.02 or otherwise in this Article X Agreement or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law of any jurisdiction, or any event, affecting any term of any Guaranteed Obligation or the rights of the Administrative Agent, the Collateral Agent or any Bank with respect thereto, including without limitation: (A) the application of any such law, including any prior approval, which would prevent the exchange of a currency other than Dollars for Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice; or (B) a declaration of a banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or required approval of payments on, any indebtedness in such jurisdiction; or (C) any expropriation, confiscation, nationalization or requisition by any country or any Governmental Authority that directly or indirectly deprives any Person in such country otherwise entitled thereto of any claim for payment under all or any part of the Guaranteed Obligations; or (D) any war (whether or not declared), insurrection, revolution, hostile act, civil strife or similar events occurring in such jurisdiction which has the same effect as the events described in clause (A), (B) or (C) above (in each of the cases contemplated in clauses (A) through (D) above, to the extent occurring or existing on or at any time after the date of this Agreement); or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor (other than, subject to Section 2.03 hereof, by reason of the full and final payment of all Guaranteed Obligations).
(c) To the fullest extent permitted by law, the Company each Guarantor expressly waives, for the benefit of the Administrative Agent and the LendersBanks, (a) all set-offs and counterclaims and all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoeverwhatsoever (other than the written demand for payment pursuant to Section 2.01 hereof), (b) and any requirement that the Administrative Agent or any Lender Bank exhaust any right, power or remedy or proceed against any the Borrower under the Credit Agreement, any Note or any other Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Guarantor further expressly waives the benefit of any and all statutes of limitation and of any law that exonerates or limits the liability of guarantors or sureties, and any defenses provided by these laws, to the fullest extent permitted by applicable law.
(d) Each Guarantor further waives, to the fullest extent permitted by law, any defense based upon any statute or rule of law right to which provides it may be entitled, including, without limitation:
(i) that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that assets of the principal and (e) Borrower first be used, depleted and/or applied in satisfaction of the Borrower’s obligations under the Credit Agreement prior to any defenses or benefits that may be derived amounts being claimed from or afforded paid by law which limit any Guarantor;
(ii) to require that the liability Borrower be sued and all claims against the Borrower be completed prior to an action or proceeding being initiated against any Guarantor;
(iii) to have its obligations hereunder be divided among other guarantors; and
(iv) to the extent applicable, under Articles 2813, 2814, 2815, 2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2827, 2830 (subject to what is provided herein), 2836, 2837 (subject to what is provided herein, to the extent amounts due are not paid in full), 2842, 2846 and 2848 of or exonerate guarantors or suretiesMexico’s Federal Civil Code (and the corresponding provisions of the Civil Code of the States of Mexico).
Appears in 1 contract
Sources: Guaranty Agreement (Desc S a De C V)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and 364-DAY CREDIT AGREEMENT privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any 364-DAY CREDIT AGREEMENT other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.. 364-DAY CREDIT AGREEMENT
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company Guarantor agrees that its obligations under Section 10.01 clause (a) above shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Guarantor agrees that:
(ai) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Section 9 in accordance with its terms or CREDIT AGREEMENT affect, limit, reduce, discharge or terminate the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):9.1:
(iA) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(iiB) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiiC) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivD) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(vE) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(viF) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person or any disposition of any shares of the Guarantor;
(G) any proceeding against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article X;Section 9; CREDIT AGREEMENT
(viiH) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ixI) all or any combination of any of the actions set forth in this Section 10.02(a9(b)(i).
(bii) The enforceability and effectiveness of this Article X Section 9 and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X Section 9 shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(iA) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iiB) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiiC) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivD) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.1(d), by reason of the full payment of all Guaranteed Obligations);
(vE) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s 's liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Document;; CREDIT AGREEMENT
(viF) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(viiG) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiiH) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixI) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 9(b) or otherwise in this Article X Section 9 or by any other provision of any Loan Document or any omission to take any such action; or
(xJ) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(ciii) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any the Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Section 9 or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: Credit Agreement (Mastercard Inc)
Acknowledgments, Waivers and Consents. The Company Each Guarantor agrees that its the obligations of such Guarantor under Section 10.01 7.01 hereof shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arisingcircumstances. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:
(a) The occurrence of any one or more of the following shall shall, to the fullest extent permitted by applicable law, not affect the enforceability or effectiveness of this Article X Section 7 in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Companysuch Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent, the Collateral Agent or any Lender, Lender under this Section 10.02(a):7:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other Guarantor under this Agreement or of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation any letter of credit or the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determineObligations;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any proceeding against consent to the merger or consolidation of, the sale of a substantial portion of the assets by, or other restructuring or termination of the corporate existence of any Borrower or any other guarantor Person or any disposition of any shares of any Guarantor;
(vii) any proceeding against any Obligor with respect to all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders Loan Parties under the Loan Documents or otherwise in such order and such manner as the Administrative Agent Agents may determine, regardless of whether the Administrative Agent or the Lenders Loan Parties shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XAgreement;
(viiviii) the entering into such other transactions or business dealings with any Borrower, Obligor or any Subsidiary or Affiliate of any Borrower or Obligor as any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender Loan Party may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligationdetermine; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a7.02(a).
(b) The enforceability and effectiveness of this Article X Agreement and the liability of the CompanyGuarantors, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Loan Parties, under this Article X Agreement shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives waives, to the fullest extent permitted by law applicable law, any defense now or in the future arising, by reason of:
(i) the any illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor Obligor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.037.03 hereof, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender Loan Party to marshal assets in favor of any Borrower the Borrowers or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower the Borrowers or any other guarantor of all or any part of the Guaranteed Obligations (including any issuer of any letter of credit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability's liability under this Agreement, the Administrative Agent and the Lenders Loan Parties being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower the Borrowers may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor Obligor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(vii) any failure of the Administrative Agent or any Lender Loan Party or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, concurso mercantil, winding-up or adjustment of debts, or appointment of a custodian, interventor, conciliador, sindico, liquidator or the like of it, or similar proceedings commenced by or against any PersonObligor, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender Loan Party that is authorized by this Section 10.02 7.02 or otherwise in this Article X Agreement or by any other provision of any Loan Document or any omission to take any such action; or
(x) to the fullest extent permitted by applicable law, any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company each Guarantor expressly waives, for the benefit of the Administrative Agent Loan Parties, all set-offs and the Lenders, (a) counterclaims and all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoeverwhatsoever (other than the written demand for payment pursuant to Section 7.01 hereof), (b) and any requirement that the Administrative Agent or any Lender Loan Party exhaust any right, power or remedy or proceed against the Borrowers under this Agreement, any Borrower under Note or any other Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Guarantor further expressly waives the benefit of any and all statutes of limitation, to the fullest extent permitted by applicable law.
(d) Each Guarantor further waives, to the fullest extent permitted by applicable law, any defense based upon any statute or rule of law right to which provides it may be entitled, including, without limitation:
(i) that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that assets of the principal and (e) Borrowers first be used, depleted and/or applied in satisfaction of the Borrowers' obligations under this Agreement prior to any defenses or benefits that may be derived amounts being claimed from or afforded paid by law which limit any Guarantor;
(ii) to require that the liability Borrowers be sued and all claims against the Borrowers be completed prior to an action or proceeding being initiated against such Guarantor;
(iii) to have its obligations hereunder be divided among the Guarantors, such that each Guarantor's obligation would be less than the full amount claimed; and
(iv) to the extent applicable, under Articles 2814, 2815, 2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2842, 2845 and 2846 of or exonerate guarantors or suretiesthe Mexican Federal Civil Code and the correlative rights of the Civil Codes of the Federal District and the States of Mexico.
Appears in 1 contract
Sources: Loan Agreement (Vitro Sa De Cv)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party; AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);; AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company agrees (a) Each Guarantor acknowledges that its the obligations undertaken by it under Section 10.01 shall, to this Agreement involve the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances guarantee of obligations of Persons other than itself and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or such obligations are absolute and irrevocable. In full recognition and in the future arising. Without limiting furtherance of the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:
(a) The occurrence of any one or more of , subject to and except as provided otherwise in the following shall not affect limitations set forth in Section 2.04 below and the procedures set forth in Section 2.05 below, and without affecting the enforceability or effectiveness of this Article X Agreement in accordance with its terms and without affecting, limiting, reducing, discharging or affect, limit, reduce, discharge or terminate terminating the respective liability of the Companyany Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, Buyer under this Section 10.02(a):Agreement, Buyer may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) any modification accept or amendment receive (including without limitation by way of amendment, extension, renewal or waiver), or from any acceleration or other change in the time for payment or performance of the terms of all or any part of Guarantor) partial payments on the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification (whether as a result of the exercise of any Commitmentright, remedy, power or privilege or otherwise);
(ii) release any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed ObligationsGuarantor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(viii) any settlementsettle, compromise, release, liquidation liquidate or enforcement, enforce upon such terms and in such manner as the Administrative Agent Buyer may determine or as applicable law may dictate, of dictate all or any part of the Guaranteed Obligations or as to the Company;
(iv) proceed against the Company, any other guarantee of Guarantor (including without limitation any letter of credit issued with respect tobut only as to its Proportionate Share (as defined below) all or any part of the Guaranteed Obligations;
(vi) any proceeding against any Borrower or any other guarantor of Person for or relative to all or any part of the Guaranteed Obligations or any collateral provided by any other Person or and exercise the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders Buyer under the Loan Documents Purchase Agreement or otherwise in such order and such manner as the Administrative Agent Buyer may in its discretion determine, regardless of whether the Administrative Agent without any necessity first to proceed against any other Person or the Lenders shall have proceeded against or exhausted to enforce any collateral, right, remedy, power or privilege as to any other Person before proceeding commencing to call upon proceed against or otherwise to enforce this Article X;Agreement as to any Guarantor; and
(viiv) the entering enter into such other transactions or business dealings with any Borrowerother Guarantor, the Company, any Subsidiary subsidiary or Affiliate affiliate of any Borrower the Company or any other guarantor of all or any part of the Guaranteed Obligations Person as the Administrative Agent or any Lender Buyer may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a).
(b) The enforceability and effectiveness of this Article X Agreement and the liability of the CompanyGuarantors, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Buyer, under this Article X Agreement shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arisingarising against the Buyer, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(vii) any failure of the Administrative Agent or any Lender or any other Person Buyer to file or enforce a claim in any bankruptcy or other proceeding with respect to the Company or any Personother Guarantor;
(viiiii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings Bankruptcy Proceeding commenced by or against any Personthe Company or a Guarantor, including any discharge of, of or bar ban or stay against collecting, collecting all or any part of its Guaranteed Obligation as a result of such Bankruptcy Proceeding;
(iii) any action taken by Buyer that is authorized by this Section 2.02 or otherwise in this Agreement or by any other provision of the Purchase Agreement;
(iv) any extension, renewal, settlement, compromise, waiver or release in respect of any Guaranteed Obligations Obligation, by operation of law or otherwise;
(v) any modification or amendment of or supplement to the Purchase Agreement or any interest on all related document or agreement pursuant to the terms and conditions set forth therein;
(vi) the existence of any claim, defense, set-off or other rights which any Guarantor may have at any time against the Company, Buyer or any part other Person, whether in connection herewith or any unrelated transactions, provided that nothing herein shall prevent the assertion of any claim, defense or other right, remedy, power or privilege that any Guarantor or the Company may have against Buyer by separate suit or by defense, cross-claim or counterclaim in an action brought by Buyer under this Agreement or otherwise;
(vii) any change in the partnership or other organizational existence, structure or ownership of the Guaranteed ObligationsCompany, any Guarantor or any other Person; or
(viii) the invalidity or unenforceability, in whole or in part, of the Purchase Agreement or any related document or agreement in connection with or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in this Article X or efforts by any other provision Person to challenge the validity, legality or enforceability of any Loan Document or any omission the transactions provided for in the Purchase Agreement on the basis of the adequacy of the consideration paid to take any such action; or
(x) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorthe Company.
(c) To Other than with respect to the fullest extent permitted by lawprocedures provided for in Section 2.05 of this Agreement, the Company each Guarantor expressly waives, for the benefit of the Administrative Agent and the LendersBuyer, (a) all diligencepresentments, promptness, presentment, demand demands for payment or performance, notices of nonpayment or nonperformance, protestprotests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred whatsoever with respect to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Agreement or of the existence, creation, creation or incurring or assumption of new or additional Guaranteed Obligations, .
(d) Each Guarantor represents and warrants that it has reviewed the Purchase Agreement and is fully familiar with the transaction contemplated thereby. Except as expressly required by the terms hereof, each Guarantor hereby expressly waives and relinquishes any defense based upon duty on the part of Buyer (should any statute such duty exist) to disclose to any Guarantor any matter of fact or rule of law which provides that other information related to the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that business, operations or condition (financial or otherwise) of the principal and Company or its properties or to the Purchase Agreement or the transactions undertaken pursuant thereto or contemplated thereby.
(e) Each Guarantor intends that its rights and obligations shall be those expressly set forth in this Agreement and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any defenses principles or benefits provisions of law that conflict with the terms of this Agreement.
(f) The Company and Buyer agree and acknowledge that, in exchange for the Guarantors' entry into this Agreement, each Guarantor, for itself and on behalf of the Company, shall have and be entitled to raise and assert, against Buyer or any other Person that may be derived from assert a claim in respect of a Guaranteed Obligation, any and all rights, remedies, powers, privileges, claims or afforded defenses (other than set-offs to which there has not been consent by law which limit the liability of parties, a judgment or exonerate guarantors a final determination in an arbitration) that the Company may have under the Purchase Agreement or suretiesany related document or agreement, and the Company hereby assigns to the Guarantors any and all such rights, remedies, powers, privileges, claims and defenses in their entirety.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of any Designated Borrower or any other Person or any disposition of any shares of the Company or any Designated Borrower;
(vii) any proceeding against any Designated Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Designated Borrower, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Designated Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Designated Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any such Designated Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any such Designated Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Designated Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction of Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Designated Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: Credit Agreement (Stanley Works)
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Designated Borrower or any other Person or any disposition of any shares of the Company or the Designated Borrower;
(vii) any proceeding against any the Designated Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any the Designated Borrower, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any the Designated Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Designated Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Designated Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Designated Borrower may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Designated Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction of Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any the Designated Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: Credit Agreement (Stanley Works)
Acknowledgments, Waivers and Consents. The Company Each Guarantor agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company each Guarantor agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Companysuch Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;; 364-DAY CREDIT AGREEMENT
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Companysuch Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);; 364-DAY CREDIT AGREEMENT
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which such Guarantor may have with respect to all or any part of any obligations owed to such Guarantor by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company each Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.. 364-DAY CREDIT AGREEMENT
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company Visa Inc. agrees that its obligations under Section 10.01 11.1 shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Visa Inc. agrees that:
(a) 11.2.1 The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X XI in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyVisa Inc., or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):11.2.1:
(ia) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment;
(iib) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiic) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivd) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ve) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vif) any proceeding against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XXI;
(viig) the entering into such other transactions or business dealings with any Borrower, any Subsidiary or Affiliate of any Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ixh) all or any combination of any of the actions set forth in this Section 10.02(a)11.2.1.
(b) 11.2.2 The enforceability and effectiveness of this Article X XI and the liability of the CompanyVisa Inc., and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X XI shall not be affected, limited, reduced, discharged or terminated, and the Company Visa Inc. hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(ia) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iib) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiic) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivd) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.0311.3, by reason of the full payment of all Guaranteed Obligations);
(ve) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document;
(vif) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(viig) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiih) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixi) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 11.2 or otherwise in this Article X XI or by any other provision of any Loan Document or any omission to take any such action; or
(xj) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) 11.2.3 To the fullest extent permitted by law, the Company Visa Inc. expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) all notices of acceptance of this Article X XI or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company Visa Inc. agrees that its obligations under Section 10.01 11.1 shall, to the fullest extent permitted by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Visa Inc. agrees that:
(a) 11.2.1 The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X XI in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyVisa Inc., or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):11.2.1:
(ia) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment;
(iib) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiic) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivd) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ve) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vif) any proceeding against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XXI;
(viig) the entering into such other transactions or business dealings with any Borrower, any Subsidiary or Affiliate of any Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viiih) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
guaranteed obligation or (ixi) all or any combination of any of the actions set forth in this Section 10.02(a)11.2.1.
(b) 11.2.2 The enforceability and effectiveness of this Article X XI and the liability of the CompanyVisa Inc., and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X XI shall not be affected, limited, reduced, discharged or terminated, and the Company Visa Inc. hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(ia) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iib) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiic) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivd) the cessation, for any cause whatsoever, of the liability of any Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.0311.3, by reason of the full payment of all Guaranteed Obligations);
(ve) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower may be in default of its obligations under any Loan Document;
(vif) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(viig) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiih) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixi) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 11.2 or otherwise in this Article X XI or by any other provision of any Loan Document or any omission to take any such action; or
(xj) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) 11.2.3 To the fullest extent permitted by law, the Company Visa Inc. expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) all notices of acceptance of this Article X XI or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitment;the Commitments; FIVE YEAR CREDIT AGREEMENT
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).. FIVE YEAR CREDIT AGREEMENT
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full); FIVE YEAR CREDIT AGREEMENT
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Company agrees that its obligations under Section 10.01 shall, to the fullest extent permitted by applicable law, 9.01 shall be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty guarantee therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company agrees that:
(a) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X IX in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the Company, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):Article IX:
(i) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(ii) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(iv) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of, any other Loan Party or any other Person or any disposition of any shares of any Loan Party;
(vii) any proceeding against any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XIX;
(viiviii) the entering into such other transactions or business dealings with any Borrowerother Loan Party, any Subsidiary or Affiliate of any Borrower affiliate thereof or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ix) all or any combination of any of the actions set forth in this Section 10.02(a9.02(a).
(b) The enforceability and effectiveness of this Article X IX and the liability of the Company, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lenders, under this Article X IX shall not be affected, limited, reduced, discharged or terminated, and the Company hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantorguarantor of all or any part of the Guaranteed Obligations;
(iii) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;; 364-DAY CREDIT AGREEMENT
(iv) the cessation, for any cause whatsoever, of the liability of any Borrower other Loan Party or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.03, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor of any Borrower other Loan Party or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Borrower such other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Person’s liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any Borrower such other Loan Party may be in default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim (other than a defense of payment or performance by the applicable Borrower) which any Borrower other Loan Party or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations, or any counterclaim, set-off or other claim which the Company may have with respect to all or any part of any obligations owed to the Company by the Administrative Agent or any Lender (other than, without prejudice to Section 9.03, any counterclaim or other claim that the amount of such Guaranteed Obligation which is being claimed has been finally paid in full);
(vii) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 or otherwise in under this Article X IX or by any other provision of any Loan Document or any omission to take any such action; or;
(x) any law, regulation, decree or order of any jurisdiction or Governmental Authority or any event affecting any term of the Guaranteed Obligations; or
(xi) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.. 364-DAY CREDIT AGREEMENT
(c) To the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Borrower other Loan Party under any Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X IX or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Acknowledgments, Waivers and Consents. The Company Guarantor agrees that its the obligations of the Guarantor under Section 10.01 clause (b) above shall, to the fullest extent permitted CREDIT AGREEMENT by applicable law, be primary, absolute, irrevocable and unconditional under any and all circumstances and that the guaranty therein is made with respect to any Guaranteed Obligations now existing or in the future arising. Without limiting the foregoing, to the fullest extent permitted by applicable law, the Company Guarantor agrees that:
(ai) The occurrence of any one or more of the following shall not affect the enforceability or effectiveness of this Article X Section 9.1 in accordance with its terms or affect, limit, reduce, discharge or terminate the liability of the CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, under this Section 10.02(a):9.1:
(iA) any modification or amendment (including without limitation by way of amendment, extension, renewal or waiver), or any acceleration or other change in the time for payment or performance of the terms of all or any part of the Guaranteed Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any Commitmentthe Commitments;
(iiB) any release, termination, waiver, abandonment, lapse or expiration, subordination or enforcement of the liability of any other guarantee of all or any part of the Guaranteed Obligations;
(iiiC) any application of the proceeds of any other guarantee (including without limitation the obligations of any other guarantor of all or any part of the Guaranteed Obligations) to all or any part of the Guaranteed Obligations in any such manner and to such extent as the Administrative Agent may determine;
(ivD) any release of any other Person (including without limitation any other guarantor with respect to all or any part of the Guaranteed Obligations) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(vE) any settlement, compromise, release, liquidation or enforcement, upon such terms and in such manner as the Administrative Agent may determine or as applicable law may dictate, of all or any part of the Guaranteed Obligations or any other guarantee of (including without limitation any letter of credit issued with respect to) all or any part of the Guaranteed Obligations;
(viF) the giving of any consent to the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower or any other Person or any disposition of any shares of the Guarantor;
(G) any proceeding against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any collateral provided by any other Person or the exercise of any rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan CREDIT AGREEMENT Documents or otherwise in such order and such manner as the Administrative Agent may determine, regardless of whether the Administrative Agent or the Lenders shall have proceeded against or exhausted any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Article XSection 9.1;
(viiH) the entering into such other transactions or business dealings with any the Borrower, any Subsidiary or Affiliate of any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations as the Administrative Agent or any Lender may desire;
(viii) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; or
(ixI) all or any combination of any of the actions set forth in this Section 10.02(a9.1(c)(i).
(bii) The enforceability and effectiveness of this Article X Section 9.1 and the liability of the CompanyGuarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Article X Section 9.1 shall not be affected, limited, reduced, discharged or terminated, and the Company Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(iA) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Loan Document or any other agreement or instrument whatsoever relating to all or any part of the Guaranteed Obligations;
(iiB) any disability or other defense with respect to all or any part of the Guaranteed Obligations (other than payment in full)Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other guarantor;
(iiiC) the illegality, invalidity or unenforceability of any security for or other guarantee (including without limitation any letter of credit) of all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(ivD) the cessation, for any cause whatsoever, of the liability of any the Borrower or any other guarantor with respect to all or any part of the Guaranteed Obligations (other than, subject to Section 10.039.1(d), by reason of the full payment of all Guaranteed Obligations);
(vE) any failure of the Administrative Agent or any Lender to marshal assets in favor of any the Borrower or any other Person (including any other guarantor of all or any part of the Guaranteed Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action CREDIT AGREEMENT whatsoever to mitigate or reduce such or any other Person’s 's liability, the Administrative Agent and the Lenders being under no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that any the Borrower may be in default of its obligations under any Loan Document;
(viF) any counterclaim, set-off or other claim (other than a defense of payment or performance by which the applicable Borrower) which any Borrower or any other guarantor of all or any part of the Guaranteed Obligations has or claims with respect to all or any part of the Guaranteed Obligations;
(viiG) any failure of the Administrative Agent or any Lender or any other Person to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(viiiH) any bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or appointment of a custodian, liquidator or the like of it, or similar proceedings commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(ixI) any action taken by the Administrative Agent or any Lender that is authorized by this Section 10.02 9.1(c) or otherwise in this Article X Section 9.1 or by any other provision of any Loan Document or any omission to take any such action; or
(xJ) any other circumstance whatsoever (other than payment in full) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(ciii) To the fullest extent permitted by law, the Company Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, (a) all diligence, promptness, presentment, demand for payment or performance, notices of nonpayment or nonperformance, protest, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever, (b) and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any the Borrower under this Agreement, any Note or any other Loan Document or other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations, (c) and all notices of acceptance of this Article X Section 9.1 or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations, (d) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties.
Appears in 1 contract
Sources: Credit Agreement (Mastercard Inc)