Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that: (a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness; (b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law); (c) limit the availability of a remedy under certain circumstances where another remedy has been elected; (d) provide a time limitation after which a remedy may not be enforced; (e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights; (f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale; (g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification; (h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; (i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs; (j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract; (k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and (l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 4 contracts
Samples: Credit Agreement, Replacement Revolving Credit Facility and Incremental Term Loan Assumption Agreement (Community Health Systems Inc), Credit Agreement (Community Health Systems Inc)
Other Common Qualifications. Each of our opinions of our letter Specified Opinions is subject to the effect of rules of law that:
(a) a. limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) b. provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) c. limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) d. provide a time limitation after which a remedy may not be enforced;
(e) e. limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) f. relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) g. limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability or for liabilities arising under the securities laws or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) h. may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) i. govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) j. may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents Transaction Agreements (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and the Credit Parties that which is substantially and materially different from that presently contemplated by the Credit DocumentsTransaction Agreements, (ii) release a the primary obligor, obligor or (iii) impair a the guarantor’s recourse against the primary obligor; andand/or
(l) render unenforceable k. limit the enforceability of requirements in the Credit Documents Transaction Agreements that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 3 contracts
Samples: Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.)
Other Common Qualifications. Each of our opinions (other than with respect to paragraphs 1, 2, 3, 4, 7, 12 and 13 of our letter letter) is subject to the effect of rules of law that:
(a) a. limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) b. provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) c. provide a time limitation after which a remedy may not be enforced;
(e) d. limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) e. relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable salesale or disposition of collateral;
(g) f. limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) g. may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) h. govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) i. may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;.
(k) j. unless effectively consented to by the applicable guarantor, may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) Transaction Agreements so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and the Credit Parties that any Loan Party which is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against Transaction Agreements.
k. limit the primary obligor; and
(l) render unenforceable enforceability of requirements in the Credit Documents Transaction Agreements that provisions therein may only be waived or amended in writing, writing may not be enforceable to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 3 contracts
Samples: Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC)
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability or for liabilities arising under securities laws or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(hg) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(ih) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(ji) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(kj) may render guarantees or other similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents Agreement evidencing or relating to the guaranteed obligations (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and the Credit Parties that Borrower which is substantially and materially different from that presently contemplated primary obligor; and by the Credit Documents, Agreement or (ii) release a primary obligor, or (iii) impair a the guarantor’s recourse against the primary obligor; and;
(lk) render unenforceable limit the enforceability of requirements in the Credit Documents Agreement that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 2 contracts
Samples: Credit Agreement (Wyndham Worldwide Corp), Credit Agreement (Wyndham Worldwide Corp)
Other Common Qualifications. Each of our opinions as to the validity, binding effect or enforceability of our letter any of the Transaction Documents or to the availability of injunctive relief and other equitable remedies is subject to the effect of rules of law that:
(a) a. limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) b. provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) c. limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) d. provide a time limitation after which a remedy may not be enforced;
(e) e. limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) f. relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) g. limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for strict product liability or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) h. may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) i. govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) j. may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement k. limit the enforceability of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Transaction Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision;
l. may render guarantees or similar instruments or agreements unenforceable under circumstances where the beneficiary’s actions, failures to act or waivers, amendments or replacement of the documents evidencing or relating to the guaranteed obligations without the consent of each affected guarantor (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the principal obligor or any guarantor which is substantially and materially different from that presently contemplated by the original documents evidencing or relating to the guaranteed obligations, (ii) release the primary obligor, or (iii) impair the guarantor’s recourse against the primary obligor;
m. a substantial body of case law treats guarantors as “debtors” under the New York UCC, thereby according guarantors the rights and remedies of debtors established by the New York UCC;
n. limit the availability of a remedy under certain circumstances where another remedy has been elected;
o. we express no opinion as to the effect of purported waivers of statutory or common law suretyship defenses; and
p. we express no opinion with respect to the adequacy of the waivers set forth in any guaranty insofar as they might not be broad enough for all situations which might arise for which you would find a waiver desirable, and we express no opinion as to whether a guaranty would remain enforceable if you release the primary obligor either directly or by electing a remedy which precludes you from proceeding directly against the primary obligor.
Appears in 2 contracts
Samples: Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.)
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) a. limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) b. provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) c. limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) d. provide a time limitation after which a remedy may not be enforced;
(e) e. limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) f. relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) g. limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) h. may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) i. govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) j. may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Samples: Credit Agreement (Imc Global Inc)
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) a. limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) b. provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) c. limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) d. provide a time limitation after which a remedy may not be enforced;
(e) e. limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) f. relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) g. limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, conduct or violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) h. may, where less than all of a contract may be unenforceable, limit the A-2 144 enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) i. govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) j. may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;; and
(k) k. may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents Transaction Agreement (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and the Credit Parties that GenDerm which is substantially and materially different from that presently contemplated by the Credit Documents, Transaction Agreement or (ii) release a the primary obligor, obligor or (iii) impair a the guarantor’s 's recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except selected, other than the selection of New York State courts pursuant to the extent provided in Section 5-1402 of the New York General Obligations Law)Law Section 5-1402;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, bad faith, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability or for liabilities arising under securities laws or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or other similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Operative Documents evidencing or relating to the guaranteed obligations (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and any of the Credit Parties that which is substantially and materially different from that presently contemplated primary obligor; and by the Credit Documents, Operative Documents or (ii) release a primary obligor, or (iii) impair a the guarantor’s recourse against the primary obligor;
(l) relate to whether the guarantee would remain enforceable if you release the primary obligor either directly or by electing a remedy which precludes you from proceeding directly against the obligor; and
(lm) render unenforceable limit the enforceability of requirements in the Credit Operative Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law);
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.or
Appears in 1 contract
Other Common Qualifications. Each of our Our opinions of our letter is are subject to the effect of generally applicable rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, of the obligations of good faith, fair dealing, diligence and or reasonableness;
(b) provide that forum selection (and not choice of law) law clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, misconduct or unlawful conduct, violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(he) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(if) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ attorney fees through all appeals and other costs;; and
(jg) may permit a party that who has materially failed to render or offer performance required by the a contract to cure that failure unless failure, unless: (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance; or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;. Our opinions are subject to the following other qualifications:
(ka) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures Notwithstanding any provision in the Loan Documents to act or waivers, amendments or replacement the effect that the Loan Documents reflect the entire understanding of the Credit Documents (i) so radically change parties with respect to the essential nature matters described therein, a court may consider extrinsic evidence of the terms and conditions circumstances surrounding the entering into of the guaranteed obligations and Loan Documents to ascertain the related transactions that, intent of the parties in effect, a new relationship has arisen between using the beneficiary and language employed in the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Loan Documents, regardless of whether or not the meaning of the language used in the Loan Documents is plain and unambiguous on its face, and may determine that additional or supplementary terms can be incorporated into the Loan Documents.
(iib) release a primary obligorWe express no opinion as to the validity, binding effect or enforceability of any provision pertaining to cumulative remedies.
(c) A court may not treat as conclusive those certificates and determinations that the Loan Documents state are to be so treated.
(d) A provision in the Loan Documents that purports to restrict, or (iii) impair has the effect of restricting, access to a guarantor’s recourse against the primary obligor; andcourt may not be enforceable.
(le) render unenforceable requirements A provision in the Credit Loan Documents that provisions therein purports to waive any statutory rights may only not be waived enforceable.
(f) The effectiveness of a provision that purports to relieve a person from a liability or amended in writingduty otherwise owed may be limited by law, and a provision requiring indemnification or reimbursement may not be enforced by a court to the extent that an oral agreement it relates to the failure of such person to have satisfied or an implied agreement by trade practice performed such liability or course duty.
(g) The failure to exercise or the delay in exercising a right of conduct has been created modifying action or remedy under the Loan Documents may act as a bar to the enforcement at any time thereafter, or the waiver of, such provisionrights.
(h) We express no opinion regarding the enforceability of any provision in the Loan Documents to the effect that modifications, amendments or waivers of or with respect to the Loan Documents that are not in writing will be ineffective.
Appears in 1 contract
Samples: Credit Agreement (Portland General Electric Co /Or/)
Other Common Qualifications. Each of our opinions of in our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) provide a time limitation after which a remedy may not be enforced;
(d) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, conduct or violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and the Credit Parties that which is substantially and materially different from that presently contemplated by the Credit Documents, Documents or (ii) release a the primary obligor, obligor or (iii) impair a the guarantor’s 's recourse against the primary obligor; and;
(l) render unenforceable limit the enforceability requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct context has been created modifying any such provision; and
(m) we express no opinion regarding the enforceability of the so called "fraudulent conveyance" or "fraudulent transfer savings" clauses (and any similar provision in any other document or agreement) to the extent such provisions purport to limit the amount of the obligations of any party or the right to contribution of any other party with respect to such obligations.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) 1. limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) 2. provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) 3. limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) 4. provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) 5. limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) 6. may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) 7. govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) 8. may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions. For purposes of our letter, failures to act or waiverswe have relied, amendments or replacement without investigation, upon each of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.following assumptions:
Appears in 1 contract
Samples: Option and Securities Purchase Agreement (McMurrey Robert M)
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) EACH OF THE SPECIFIED OPINIONS IS SUBJECT TO THE EFFECT OF RULES OF LAW THAT: limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) ; provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law);
(c) selected; limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) ; provide a time limitation after which a remedy may not be enforced;
(e) ; limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) ; relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) ; limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, bad faith, recklessness, willful misconduct, unlawful conduct, or violation of public policy, or for strict product liability liability, for liabilities arising under any securities laws, or for litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) party; may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) ; govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) ; may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may ; may, in the absence of a waiver or consent by the guarantor, render guarantees or other similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Transaction Documents evidencing or relating to the guaranteed obligation (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and the Credit Parties that which is substantially and materially different from that presently contemplated by the Credit Documents, Transaction Documents or (ii) release a primary obligor, or (iii) impair a the guarantor’s 's recourse against the primary obligor; and
(l) render unenforceable and limit the eforceability of requirements in the Credit Transaction Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.. REFERENCED PROVISION QUALIFICATION. EACH OPINION REGARDING THE VALIDITY, BINDING EFFECT OR ENFORCEABILITY OF A PROVISION (THE "FIRST PROVISION") IN ANY OF THE TRANSACTION DOCUMENTS REQUIRING ANY CREDIT PARTY TO PERFORM ITS OBLIGATIONS UNDER, OR TO CAUSE ANY OTHER PERSON TO PERFORM ITS OBLIGATIONS UNDER, ANY OTHER PROVISION (A "SECOND PROVISION") OF ANY TRANSACTION DOCUMENT, OR STATING THAT ANY ACTION WILL BE TAKEN AS PROVIDED IN OR IN ACCORDANCE WITH ANY SECOND PROVISION, ARE SUBJECT TO THE SAME QUALIFICATIONS AS THE CORRESPONDING OPINION IN THIS LETTER RELATING TO THE VALIDITY, BINDING EFFECT AND ENFORCEABILITY OF SUCH SECOND PROVISION. REQUIREMENTS IN THE TRANSACTION DOCUMENTS THAT PROVISIONS THEREIN MAY ONLY BE WAIVED OR AMENDED IN WRITING MAY NOT BE ENFORCEABLE TO THE EXTENT THAT AN ORAL AGREEMENT OR AN IMPLIED AGREEMENT BY TRADE PRACTICE OR COURSE OF CONDUCT HAS BEEN CREATED MODIFYING ANY SUCH PROVISION. COLLATERAL QUALIFICATIONS. THE OPINIONS AND ADVICE CONTAINED IN OPINION PARAGRAPHS 8, 9 AND 10 IN OUR LETTER ARE SUBJECT TO THE FOLLOWING ADVICE (TERMS USED HEREIN WHICH ARE DEFINED IN THE NEW YORK UCC OR ANY OTHER APPLICABLE UNIFORM COMMERCIAL CODE HAVING THE SAME MEANINGS FOR PURPOSES HEREOF GIVEN TO THEM THEREIN): We express no opinion regarding the creation, attachment, perfection, effect of perfection or enforceability of any security interest created under Section 3(q) of the Guarantee and Collateral Agreement; certain rights of debtors and obligors and duties of secured parties referred to in Sections 1-102(3) and 9-602 of the New York UCC (and the corresponding sections of any other applicable Uniform Commercial Code) may not be waived, released, varied or disclaimed by agreement prior to a default and our opinions regarding any such waivers, releases, variations and disclaimers are limited accordingly; our opinions regarding the creation and perfection of security interests are subject to the effect of (i) the limitations on the existence and perfection of security interests in proceeds resulting from the operation of Section 9-315 of any applicable Uniform Commercial Code; (ii) the limitations in favor of buyers, licensees and lessees imposed by Sections 9-320, 9-321 and 9-323 of any applicable Uniform Commercial Code; (iii) the limitations with respect to securities imposed by Section 9-331 and Section 8-303 of any applicable Uniform Commercial Code; (iv) other rights of persons in possession of money, instruments and proceeds constituting certificated or uncertificated securities; and (v) Section 547 of the Bankruptcy Code with respect to preferential transfers and Section 552 of the Bankruptcy Code with respect to any Collateral acquired by any Credit Party subsequent to the commencement of a case against or by any Credit Party under the Bankruptcy Code;
Appears in 1 contract
Other Common Qualifications. Each of our opinions as to the validity, binding effect or enforceability of any of the Credit Documents or to the availability of injunctive relief and other equitable remedies of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law);
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Samples: Asset Based Loan Credit Agreement (Express Parent LLC)
Other Common Qualifications. Each of our opinions of our letter Specified Opinions is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, bad faith, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of in our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) provide a time limitation after which a remedy may not be enforced;
(d) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, conduct or violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and the Credit Parties that which is substantially and materially different from that presently contemplated by the Credit Documents, Documents or (ii) release a the primary obligor, obligor or (iii) impair a the guarantor’s 's recourse against the primary obligor; and
(l) render unenforceable limit the enforceability requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct context has been created modifying any such provision.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of our letter the Specified Opinions is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your the beneficiary’s actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) documents evidencing or relating to the guaranteed obligations so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and any the Credit Parties that principal obligor or any guarantor which is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, original documents evidencing or (iii) impair a guarantor’s recourse against relating to the primary obligorguaranteed obligations; and
(l1) render unenforceable limit the enforceability of requirements in the Credit Operative Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Other Common Qualifications. Each of our opinions as to the validity, binding effect or enforceability of any of the Credit Documents or to the availability of injunctive relief and other equitable remedies of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law);
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your the beneficiary’s actions, failures to act or waivers, amendments or replacement of the Credit Documents without the consent of each affected guarantor (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties Borrower that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, obligor or (iii) impair a guarantor’s recourse against the primary obligor; and
(l1) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;.
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) Loan Agreements so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between you and Borrower or those parties signatory to each of the beneficiary Parent Guarantee Agreement and the Credit Parties that Subsidiaries Guarantee Agreement (collectively, "Guarantors") which is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provisionLoan Agreements.
Appears in 1 contract
Samples: Credit Agreement (Isg Resources Inc)
Other Common Qualifications. Each of our The opinions of our set forth in this opinion letter is are subject to the effect of generally applicable rules of law that:
(ai) limit or affect the enforcement of provisions of a contract that purport to waive, require or to require effect waiver of, of the obligations of good faith, fair dealing, diligence and reasonableness;
(bii) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(ciii) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(eiv) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(fv) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(gvi) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct, misconduct or unlawful conduct, violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(hvii) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(iviii) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(jix) may, in the absence of a waiver or consent, discharge a guarantor to the extent that (A) action by a creditor impairs the value of collateral securing guaranteed debt to the detriment of the guarantor, or (B) guaranteed debt is materially modified; and
(x) may permit a party that who has materially failed to render or offer performance required by the contract to cure that failure unless (iA) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (iiB) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Samples: Credit Agreement (Hooker Funiture Corp Employee Stock Ownership Plan Trust)
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, conduct or violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;; and
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of limit the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable enforceability requirements in the Credit Transaction Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Samples: Securities Purchase Agreement (Interline Brands, Inc./De)
Other Common Qualifications. Each To the extent the applicable law of our opinions the relevant jurisdiction applies any of our letter the following rules to one or more of the provisions of a contract covered by an opinion expressed in this opinion letter, that opinion is subject to the effect of generally applicable rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, of the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor credit to use force or cause a breach of the peace in enforcing rights;
(fe) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(gf) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct, misconduct or unlawful conduct, violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(hg) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(ih) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(i) may, in the absence of a waiver or consent, discharge a guarantor to the extent that: (i) action by a creditor impairs the value of collateral securing guaranteed debt to the detriment of the guarantor, or (ii) guaranteed debt is materially modified; and
(j) may permit a party that who has materially failed to render or offer performance required by the contract to cure that failure unless unless: (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was is important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions. EXHIBIT 3 CERTIFICATE OF MERGER OF GPP MERGER CORPORATION INTO GENERAC PORTABLE PRODUCTS, failures INC. The undersigned corporation, pursuant to act or waivers, amendments or replacement Section 251 of the Credit Documents Delaware General Corporation Law, for the purpose of merging GPP Merger Corporation, a Delaware corporation (i"GPP"), into Generac Portable Products, Inc., a Delaware corporation (the "Surviving Corporation"), which is the surviving corporation in such merger, (together hereinafter the "Constituent Corporations") so radically change hereby certifies the essential nature following:
1. An Agreement and Plan of Merger by and between GPP and the Surviving Corporation has been approved, adopted, certified, executed and acknowledged by each of the terms and conditions Constituent Corporations in accordance with Section 251 of the guaranteed obligations Delaware General Corporation Law. The Agreement and Plan of Merger was adopted by a majority of the related transactions thatholders of all of the outstanding stock of each of the Constituent Corporations entitled to vote, in effectaccordance with the provisions of Section 228 of the Delaware General Corporation Law.
2. The name of the Surviving Corporation is Generac Portable Products, a new relationship has arisen between the beneficiary Inc., and the Credit Parties that is substantially and materially different from that presently contemplated it shall be governed by the Credit Documentslaws of the State of Delaware. The Certificate of Incorporation of the Surviving Corporation shall not be affected by the Merger.
3. The executed Agreement and Plan of Merger is on file at the principal place of business of the Surviving Corporation, (ii) release a primary obligorOne Xxxxxxx Xxx, or (iii) impair a guarantor’s recourse against Xxxxxxxxx, XX 00000.
4. A copy of the primary obligor; and
(l) render unenforceable requirements in Agreement and Plan of Merger will be furnished by the Credit Documents that provisions therein may only be waived or amended in writingSurviving Corporation, on request and without cost, to any stockholder of either of the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provisionConstituent Corporations.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of our letter the Specified Opinions is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your the beneficiary’s actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) documents evidencing or relating to the guaranteed obligations so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and any the Credit Parties that principal obligor or any guarantor which is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, original documents evidencing or (iii) impair a guarantor’s recourse against relating to the primary obligorguaranteed obligations; and
(l) render unenforceable limit the enforceability of requirements in the Credit Operative Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection clauses (and not choice e.g., consent to venue, jurisdiction or service of lawprocess) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) affect the enforceability of any provision in the Transaction Documents that purports to make void any act done in contravention thereof;
(d) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(de) limit the enforceability of any provision to the extent that such provision constitutes a waiver of illegality as a defense to performance of contract obligations;
(f) provide a time limitation after which a remedy may not be enforced;
(eg) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(fh) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(gi) affect the enforceability of any provision in the Transaction Documents that purports to authorize a party to act in its sole discretion, that imposes penalties or late payment charges, or that relates to evidentiary standards or other standards by which the Transaction Documents are to be construed;
(j) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, conduct or violation of public policy, or for strict product liability or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(hk) limit the enforcement of any guarantees, and limit the effectiveness of any waiver by the parties of their rights;
(l) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(im) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(jn) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(ko) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement limit the enforceability of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements any provisions contained in the Credit Transaction Documents that provisions therein may require waiver or amendments to be made only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision;
(p) affect provisions, if any, in the Transaction Documents to the effect that waiver by a party of performance obligations by another party shall not be deemed a waiver of such party's right thereafter to cause the applicable document to be in default may not be enforceable in all circumstances, unless such party shall (i) first provide written notice to the other party that subsequent defaults will not be accepted and will result in a default, and (ii) thereafter, timely and diligently pursue its default remedies; and
(q) relate to the enforceability of any provisions contained in the Transaction Documents purporting to require a party thereto to pay or reimburse attorneys' fees incurred by another party, or to indemnify another party therefor, which provisions may be limited by applicable statutes and decisions relating to the collection and award of attorneys' fees. North Carolina General Statutes ss. 6-21.2 sets forth the procedures and limitations applicable to thE collection of attorneys' fees and, accordingly, any provisions in the Transaction Documents related to the ability of any party to collect attorneys' fees upon default are subject to those limitations.
Appears in 1 contract
Samples: Securities Purchase Agreement (Interline Brands, Inc./De)
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) 1. limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) 2. provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) 3. limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) 4. provide a time limitation after which a remedy may not be enforced;
(e) 5. limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) 6. relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) 7. limit the enforceability of provisions releasing, exculpating excul- pating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) 8. may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) 9. govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) 10. may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;.
(k) 11. may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents (i) Transaction Agreements so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and the Credit Parties that Company or Guarantors which is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provisionTransaction Agreements.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability or for liabilities arising under securities laws or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(hg) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(ih) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(ji) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(kj) may render guarantees or other similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Documents Agreement evidencing or relating to the guaranteed obligations (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary you and the Credit Parties that Borrower which is substantially and materially different from that presently contemplated primary obligor; and by the Credit Documents, Agreement or (ii) release a primary obligor, or (iii) impair a the guarantor’s recourse against the primary obligor; and
(lk) render unenforceable limit the enforceability of requirements in the Credit Documents Agreement that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Other Common Qualifications. Each of our opinions of our letter the Specified Opinions is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, or violation of public policy, or for strict product liability or for liabilities arising under securities laws or for litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement limit the enforceability of the Credit Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, or (iii) impair a guarantor’s recourse against the primary obligor; and
(l) render unenforceable requirements in the Credit Operative Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision;
(l) may, in the absence of a waiver or consent by the guarantor, render guaranties or other similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Operative Documents evidencing or relating to the guaranteed obligation (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between you and the Loan Parties which is substantially and materially different from that presently contemplated by the Operative Documents or (ii) impair the guarantor’s recourse against the primary obligor; and
(m) we express no opinion with respect to the adequacy of the waivers set forth in any guaranty insofar as they might not be broad enough for all situations which might arise for which you would find a waiver desirable, and we express no opinion as to whether such guarantee would remain enforceable if you release the primary obligor either directly or by electing a remedy which precludes you from proceeding directly against the primary obligor.
Appears in 1 contract
Samples: Credit Agreement (Targa Resources Investments Inc.)
Other Common Qualifications. Each of our opinions of our letter is subject to the effect of rules of law that:
(a) a. limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) b. provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law)selected;
(c) c. limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) d. provide a time limitation after which a remedy may not be enforced;
(e) e. limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) f. relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) g. limit the enforceability enforceabilty of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnificationparty;
(h) h. may, where less than all of a contract may be unenforceable, limit the enforceability enforceabilty of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) i. govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ ' fees and other costs;
(j) j. may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance performance, or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) k. may render guarantees or similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or A-2 79 or replacement of the Credit Loan Documents (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between you and any Company Party or the beneficiary and the Credit Parties that person issuing such guarantee or similar promise which is substantially and materially different from that presently contemplated by the Credit Loan Documents; and/or
l. we express no opinion with respect to the adequacy of waivers set forth in any guaranty insofar as they might not be broad enough for all situations which might arise for which you would find a waiver desirable, (ii) and we express no opinion as to whether the guaranty would remain enforceable if you release the primary obligor either directly or by electing a primary obligor, or (iii) impair a guarantor’s recourse remedy which precludes you from proceeding directly against the primary obligor; and
(l) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lower Road Associates LLC)
Other Common Qualifications. Each of our opinions as to the validity, binding effect or enforceability of any of the Credit Documents or to the availability of injunctive relief and other equitable remedies of our letter is subject to the effect of rules of law that:
(a) limit or affect the enforcement of provisions of a contract that purport to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection (and not choice of law) clauses in contracts are not necessarily binding on the court(s) in the forum selected (except to the extent provided in Section 5-1402 of the New York General Obligations Law);
(c) limit the availability of a remedy under certain circumstances where another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights;
(f) relate to the sale or disposition of collateral by a secured creditor or the requirements of a commercially reasonable sale;
(g) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct, unlawful conduct, violation of public policy, or for strict product liability policy or litigation against another party determined adversely to such party or for liabilities arising under the securities laws, or which limit the enforceability of provisions requiring indemnification of a party with respect to litigation between such party and another party from whom indemnification is sought which is determined adversely to the party seeking indemnification;
(h) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange;
(i) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs;
(j) may permit a party that has materially failed to render or offer performance required by the contract to cure that failure unless (i) permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or (ii) it was important in the circumstances to the aggrieved party that performance occur by the date stated in the contract;
(k) may render guarantees or similar instruments or agreements unenforceable under circumstances where your the beneficiary’s actions, failures to act or waivers, amendments or replacement of the Credit Documents without the consent of each affected guarantor (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the beneficiary and the Credit Parties that is substantially and materially different from that presently contemplated by the Credit Documents, (ii) release a primary obligor, obligor or (iii) impair a guarantor’s recourse against the primary obligor; and
(l1) render unenforceable requirements in the Credit Documents that provisions therein may only be waived or amended in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any such provision.
Appears in 1 contract
