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
Samples: 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
Samples: 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 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
Samples: Revolving Credit Agreement (Visa Inc.), Five Year Revolving Credit Agreement (Visa 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
Samples: Guaranty (Memc Electronic Materials Inc), Guaranty (Memc Electronic Materials 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 2 contracts
Samples: 364 Day Credit Agreement (Stanley Black & Decker, Inc.), Five Year Credit Agreement (Stanley Black & Decker, 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
Samples: Credit Agreement (Stanley Black & Decker, Inc.), Subsidiary Guaranty (Black & Decker Corp)
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
Samples: 364 Day Credit Agreement (Stanley Black & Decker, Inc.), 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, 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 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
Samples: 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, 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
Samples: 364 Day Credit Agreement (Stanley Black & Decker, 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 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 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 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
Samples: Guaranty Agreement (Sr Telecom 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;
(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
Samples: Credit Agreement (Mastercard 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 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
Samples: Five Year 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 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 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
Samples: 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 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
Samples: 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
Samples: Five Year 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;
(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 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 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
Samples: Credit Agreement (Mastercard 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, 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
Samples: 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;; 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
Samples: 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 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
Samples: 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 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
Samples: 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, 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 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
Samples: Credit Agreement (Mastercard Inc)
Acknowledgments, Waivers and Consents. The Company agrees 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 the Guarantor and that such obligations of the Guarantor are absolute, irrevocable and unconditional (except as provided herein) 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 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 CompanyGuarantor, or the rights, remedies, powers and privileges of the Administrative Agent or any Lender, Lead Secured Party and the Secured Parties under this Section 10.02(a):Guaranty, the Lead Secured Party and the Secured Parties 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 Obligations or any Loan Document, or any other agreement or instrument whatsoever relating thereto, or any modification of any CommitmentDebentures pursuant to the terms thereof;
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any releaseagreement, terminationsecurity document, waiverguarantee, abandonmentapproval, lapse consent 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 instrument with respect to all or any part of the Guaranteed ObligationsDebentures, any Transaction Document or any such other instrument or any term or provision of the foregoing pursuant to the terms thereof;
(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 Transaction Document, all or any part of the Debentures or any collateral now or in the future serving as security for the Debentures;
(iv) accept or receive (including from any other guarantor) partial payments or performance on the Debentures (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 Debentures (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 Debentures;
(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 Debentures in such manner and extent as the Lead Secured Party or any Secured Party 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 ObligationsDebentures;
(vix) any settlementsettle, compromise, release, liquidation liquidate or enforcement, enforce upon such terms and in such manner as the Administrative Agent Lead Secured Party or the Secured Parties may determine or as applicable law may dictate, of dictate all or any part of the Guaranteed Obligations Debentures 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 ObligationsDebentures (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 Issuers or any proceeding other Person (including any other guarantor);
(xi) proceed against any Borrower the Issuers, the Guarantor or any other guarantor of all or any part of the Guaranteed Obligations Debentures or any collateral provided by any other Person or and exercise the exercise of any rights, remedies, powers and privileges of the Administrative Agent Lead Secured Party and the Lenders Secured Parties under the Loan Transaction Documents or otherwise in such order and such manner as the Administrative Agent may Lead Secured Party or any Secured Party 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 (other than against Collateral) before proceeding to call upon or otherwise enforce this Article XGuaranty as to the Guarantor;
(viixii) obtain the entering into such other transactions or business dealings appointment of a receiver with respect to any Borrower, any Subsidiary or Affiliate of any Borrower or any other guarantor of collateral for all or any part of the Guaranteed Obligations Debentures and apply the proceeds of such receivership as the Administrative Agent Lead Secured Party or any Lender Secured Party may desire;in its discretion determine (it being agreed that nothing in this clause (xii) shall be deemed to make the Lead Secured Party or any Secured Party a party in possession in contemplation of law, except at its option); and
(viiixiii) 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 Company, Guarantor and the rights, remedies, powers and privileges of the Administrative Agent Lead Secured Party and the Lenders Secured Parties 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 not prohibited by applicable law any defense now or in the future arisingarising (other than a defense that the Debentures have been paid in full in cash), by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed ObligationsDebentures, any Loan Transaction Document or any agreement, security document, guarantee or other agreement or instrument whatsoever relating relative to all or any part of the Guaranteed ObligationsDebentures;
(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;[Reserved.]
(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 Debentures 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 ObligationsDebentures;
(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);[Reserved.]
(v) any failure of the Administrative Agent Lead Secured Party or any Lender Secured Party to marshal assets in favor give notice of sale or other disposition of any Borrower or any other Person collateral (including any other guarantor 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)Debentures) for all or any part of the Debentures to the Issuers, the Guarantor or any other Person or any defect in, or any failure by the Guarantor or any other Person to exhaust receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vi) any failure of the Lead Secured Party or any Secured Party 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, 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 ObligationsDebentures;
(vii) [Reserved.]
(viii) 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;
(ix) the possibility that the obligations of the Issuers to the Lead Secured Party and the Secured Parties may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty;
(x) [Reserved.]
(xi) any failure of the Administrative Agent Lead Secured Party or any Lender or any other Person Secured Party to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person.
(xii) the election by the Lead Secured Party or any Secured Party in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of the Bankruptcy Code;
(viiixiii) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xiv) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xv) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xvi) the avoidance of any Lien in favor of the Lead Secured Party or any Secured Party for any reason;
(xvii) 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 Debentures (or any interest on all or any part of the Guaranteed ObligationsDebentures) in or as a result of any such proceeding;; or
(ixxviii) any action taken by the Administrative Agent Lead Secured Party or any Lender Secured Party, 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 Transaction 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 Guarantor waives all rights and defenses arising out of an election of remedies by the fullest extent permitted by law, the Company expressly waives, for the benefit of the Administrative Agent Lead Secured Party and the Lenders, Secured Parties (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 than Secured Parties' obligations to proceed against any Borrower under any Loan Document Collateral first), other than if that election of remedies, may have destroyed the Guarantor's rights of subrogation and reimbursement against the principal in whole 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, in part.
(d) [Reserved.]
(e) The Guarantor represents and warrants to the Lead Secured Party and the Secured Parties that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Issuers and their 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 Issuers and their properties. The Guarantor further represents and warrants that it has reviewed and approved each of the Transaction Documents and is fully familiar with the transaction contemplated by the Transaction Documents and that it will in the future remain fully familiar with such transaction and with any defense based upon new Transaction Documents and the transactions contemplated by such Transaction Documents. The Guarantor hereby expressly waives and relinquishes any statute duty on the part of the Lead Secured Party or rule the Secured Parties (should any such duty exist) to disclose to such or any other guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Issuers or their properties or to any Transaction Document or the transactions undertaken pursuant to, or contemplated by, any such Transaction Document, whether now or in the future known by the Lead Secured Party or any Secured Party.
(f) The Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which provides that conflict with the obligation terms of a surety must be neither larger this Guaranty.
(g) Nothing in amount nor in other respects more burdensome than that of this Guaranty amends, modifies or otherwise affects any agreement between the principal Issuers, the Lead Secured Party and (e) any defenses or benefits that may be derived from or afforded by law which limit the liability Secured Parties regarding the amendment of, modification of or exonerate guarantors or suretiessupplement to any Transaction Document.
Appears in 1 contract
Samples: Guaranty Agreement (Global Aircraft Solutions, 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; 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
Samples: 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
Samples: Credit Agreement (Stanley Works)
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 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
Samples: Credit Agreement (Stanley Works)
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
Samples: Loan Agreement (Vitro Sa De Cv)
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
Samples: Credit Agreement (Mastercard 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 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
Samples: Credit Agreement (Stanley Works)
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
Samples: Guaranty Agreement (Desc S a De C V)
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
Samples: 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 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.
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